Condoleezza Rice and Executive Privilege

[Marty Lederman]

Perhaps, as an OLC alum, I ought to know the answer to this question, but what is the theory behind the White House's assertion that Condi Rice's testimony before the 9/11 Commission is prohibited by Executive Privilege?  In this story -- http://www.salon.com/news/wire/2004/03/29/rice/ -- Charles Fried is quoted as suggesting that there is such a privilege that prevents her testimony; but, in fairness to him, he's not quoted extensively enough to understand what the theory might be, particularly in light of the following:

1.  Fried concedes that cabinet-level officials (e.g., Rumsfeld and Powell) "have leeway to testify before Congress because their appointments are confirmed by the Senate" -- even though presumably they would be testifying about the same matters.  (This sounds vaguely like a distinction I recall overhearing while at OLC, although for the life of me I can't remember the argument.)

2.  Rice herself has been all over television, radio and print media providing extensive information concerning advice that she and others gave to the President.

3.  Rice testified in closed session before the Commission.

4.  Other NSC advisors have testifed before congressional and other committees in the past.

5.  Richard Clarke and others (e.g., Armitage, Tenet) have testified at length concerning the same events and advice to the President, all presumably without any White House objection based on executive privilege.  (The White House, for instance, cleared Clarke's book for publication.)

6.  The President and all of his advisors, presumably including Rice, have given journalists such as Bob Woodward extensive access to their internal deliberations (or their preferred version of them, anyway) concerning foreign affairs, terrorism, and the Iraq War.

Also, and I'm not certain which way this cuts, the 9/11 Commission is not a congressional entity.

(I apologize in advance if any of the above is not accurate; they are my understandings based on very casual exposure to the debate in the press.)

In light of the extremely bad press that the White House is suffering because of Rice's failure to publicly testify, there must be some principled argument in favor of the assertion of privilege here.  Can anyone shed some light on what it might be?
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