By Pete Williams Justice correspondent
NBC News
updated 7/9/2007 6:02:42 PM ET 2007-07-09T22:02:42

As the battle between the White House and Congress intensifies over the firings of federal prosecutors, President Bush has now employed a new weapon. On Monday, he invoked executive privilege in refusing to allow two former aides to testify.

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Put simply, executive privilege is the concept that what happens in the White House stays in the White House. But the limits of its use are surprisingly untested in the federal courts.

Though its assertion is most often associated with the Watergate scandal, nearly all American presidents have claimed that making public the advice of their aides would destroy a confidential relationship.

Seniority has its privileges
Prof. Mark Rozell, an expert on executive privilege at George Mason University, says the privilege is most potent for the most senior aides.

"There is a stronger presumption in favor of executive privilege in those cases of White House advisers who are very close to the president, part of the inner circle, whose advice is really crucial for the day-to-day operations of the White House," Rozell says.

Dwight Eisenhower was the first president to actually use the term "executive privilege," asserting it more than 40 times -- the all-time record -- in refusing demands from Sen. Joseph McCarthy, the communist hunter, who sought the testimony of White House aides.

A document in the Eisenhower library discloses (.pdf) that the president once told his staff, "Any man who testifies as to the advice he gave me won't be working for me that night. I will not allow people around me to be subpoenaed and you might just as well know it now."

Lengthy legal battles
When presidential aides decline to appear before Congress, for example as Henry Kissinger famously did in the Ford administration, Congress can issue a subpoena, legally requiring them to testify.

That's when the president can say no and formally assert executive privilege. But its power is not absolute in getting aides off the hook. Congress can vote to declare them in contempt and refer the case to court for prosecution.

Even so, it's a congressional gambit used only rarely, because the courts hate to referee what they see as political disputes between the other two branches of government.

And a court fight over defying subpoenas, legal experts say, would mean a long wait for Congress.

"To play it out in court ultimately means a two-year legal battle, where in the interim they'll get no answers to anything," says Stan Brand, a Washington, D.C., defense lawyer and former legal counsel to the U.S. House of Representatives.

If either house of Congress decided to pursue a contempt citation, the case would be referred the U.S. attorney for Washington, D.C., seeking criminal charges. Assuming the current prosecutor, a Republican political appointee, agreed to do that, he would seek an indictment from a grand jury.

Misdemeanor charges
If indicted for "refusal of witness to testify or produce papers," the reluctant White House staffers would face a trial. In court, they could raise the defense of executive privilege or claim that what Congress wanted wasn't pertinent to the issue of the prosecutor firings.

The penalty is a misdemeanor, up to a $1000 fine and a year in jail. Anyone convicted could appeal, all the way to the U.S. Supreme Court.

"There's a pop-gun effect to the statute, because it's a misdemeanor. And so you have all this gnashing of teeth and then it takes two years to litigate it," Brand says.

The legal procedure was last invoked in 1983, to compel testimony from an EPA employee, Rita Lavelle, over the Reagan administration's handling of pollution cleanup. A jury deliberated less than two hours and found her not guilty of contempt, though she was later convicted on charges of lying to Congress in earlier testimony.

Interestingly, the lawyer who handled her contempt case for the Reagan administration was Fred Fielding, now back in the same position as White House counsel.

But Congress has other ways of pressuring a reluctant White House besides going to court. It can threaten to bottle up money for a favored administration program or hold up votes on a president's nominations for federal jobs.

That's why standoffs over executive privilege nearly always end in compromise. Both sides know their options are limited.

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