Executive Privilege is a misnomer

It isn't hard to see how this one tripped up W's thought process. The idea of an executive privilege sounds like it's something the executive is "privileged", or "2. privilege - a right reserved exclusively by a particular person or group (especially a hereditary or official right)" from the free online dictionary. Well shit, the executive has the privilege, how can he not use it?

He certainly thinks nobody can shake a stick at its invocation:

The White House has refused, on the grounds of executive privilege, to make Mr. Bolten and Ms. Miers available for sworn testimony before Congress. To do so, the White House argues, could stifle frank, confidential advice to the president, and future presidents, by their closest advisers.

Of course, that's been tried before. Luckily, JP learned about the previous escapade from the timeless W.L. Church, Wisconsin's paradigmatic Constitutional scholar.

In support of his claim of absolute privilege, the President's counsel urges two grounds. The first is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion.
***
In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.... No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions.... It is the manifest duty of the courts to vindicate [the Sixth and Fifth Amendment] guarantees and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibilities against inroads of such privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

Anyone remember when the Supreme Court wrote those words? United States v. (motherfuckin') Nixon. This is still good law.

Luckily, the House Judiciary Committee today voted to indict Harriet Miers and Josh Bolten for pretending they're under the scope of executive privilege when it's obvious they aren't. I really wish they'd get Gonzales' smirk out of the White House next.