Condoleezza Rice and Executive Privilege

[Tom Grey]

As one of my colleagues says in faculty meetings, whenever this gambit is
tried: "This won't set  a precedent -- and anyway, we've done it before."

Mark Tushnet writes:

The AP story reads, in part:  "The official said the decision is
conditioned on the Bush administration receiving assurances in writing from
the commission that such a step does not set a precedent, said the official
speaking on condition of anonymity. It appeared the administration already
had such assurances verbally in private and is confident it get them in
writing."  I put aside a comment on the use of "verbally" in this story,
and simply wonder what theory of "precedent" (based of course in practice,
not in articulated principles) would suport the proposition that assurances
from Commission A that an appearance would not set a precedent could
constitute a precedent for Commission B -- or Congress, or a committee of
Congress -- regarding appearances before it?


Thomas C. Grey
Sweitzer Professor of Law
Stanford Law School
tgrey at stanford.edu