Executive Privilege

This is a partial transcript from "The O'Reilly Factor," March 29, 2004 that has been edited for clarity.

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BILL O'REILLY HOST: Now to the top story tonight, another look at the situation. Joining us from New Orleans is presidential historian Dr. Douglas Brinkley (search), the author of the book "Tour of Duty, John Kerry and the Vietnam War."

All right, I want to get to the executive privilege, Condoleezza Rice (search) thing in a minute. I said last week that if I were President Bush, I would waive that and let Condoleezza Rice answer any questions under oath in front of the 9-11 Commission in public, just because I would want to get this behind me. But let's take it step by step. Does the president have a right to invoke executive privilege and say his counselors, his personal counselors don't have to testify publicly?

DOUGLAS BRINKLEY, PRESIDENTIAL HISTORIAN: Of course, Bill, he absolutely has the right to do it. President Bush has done nothing wrong in that regard.

The problem is what you're saying, one of a political nature. There's nothing that Condoleezza Rice is going to tell the -- testify in front of the committee that she's not telling people when she goes around the talk show circuit. Hence, it gives some people a suspicion that something's being covered up when it really isn't. My feeling is, though, this story has played itself out. It may have a few more days to it. And by September, October, we're not going to be hearing much about this.

O'REILLY: Yes, it's -- I agree. It's a media-driven story anyway. I mean, people have evaluated, made up their own mind. But executive privilege is there to do what? See, Cheney wouldn't tell us about who he met with as far as his energy commission. And that teed me off. I mean, if I'm paying for the lunch, I want to know who is chowing down, OK? I don't care -- I don't want to know what they said. I think that's privileged information, but you can give me a list of who's at the lunch. It was executive privilege there.

Why don't you explain to us what this executive privilege deal is?

BRINKLEY: Well, when Condoleezza Rice, if she went to testify, at any given moment, she could say on National Security reasons, I don't feel that I can answer that question. And I think people would have understood it.

The danger with her calling executive privilege on this is the whole point of the 9-11 Commission as a kind of a public airing and opening, a way for people that lost somebody in 9-11 to feel that the U.S. government is holding itself somewhat responsible for some intelligence failures.

So I think the political mistake the Bush administration is making is treating this as a big national security issue. The bottom line is we all know that the Clinton administration and Bush administration could have done more in preparation for something like a 9-11.

We could say that about Franklin Roosevelt could have done more to prepare our fleet at Pearl Harbor. We always -- we know that. I think the fact that they used executive privilege in a time when they probably didn't need to is where the mistake lies.

O'REILLY: OK. Now, executive privilege is set up so that the president can get council from people and those people can't be scorned, sued, booed, what?

BRINKLEY: Right, exactly, and give up intelligence secrets. I mean, you can't have a president who can't talk to any of his advisers and at any minute just because there's a congressional hearing. They have to tell every single thing that occurred. Of course, a president couldn't operate that way. He'd keep council to himself and maybe his wife or something in there, but not be any other...

O'REILLY: All right, so it's like a lawyer...

BRINKLEY: Exactly.

O'REILLY: ...and a client and a doctor and a patient, OK. Got it. Now...

BRINKLEY: And because she's not a cabinet -- a cabinet officer has had to go through a hearing, where Condoleezza Rice didn't. They had to, of course, get -- you know, go through a congressional hearing to get their posts, Colin Powell or Rumsfeld. Hence, they're not obliged.

That gives the NSC, as you can see, a lot of power in foreign affairs . They really had the president's ears. And you feel safer confiding in an NSC adviser than you would a Secretary of State.

O'REILLY: Sure.

BRINKLEY: For this very reason.

O'REILLY: OK. Now I can't understand Richard Clarke. I don't get this guy at all, because he had to know that he was going to be attacked by the White House. When you go in and you're telling the president that he did a lousy job and 3,000 Americans are dead, I mean, you've got to expect some response.

Now I don't know whether you know this, Doug, but Clarke's publisher, all right, did not book him on any Fox News channel programs, none. That's almost unheard of. You're an author and I'm an author. That's almost unheard of in the business. It doesn't happen, because this network is the most powerful cable news network in the world by far. All right?

Right off the bat, -- I understand THE FACTOR," he doesn't want to answer the tough questions. But "Fox and Friends," "Day side," anything, nothing. That showed me that they knew this was a partisan book from the get-go. And they knew that Clarke had all kinds of downside, yet they chose to sell it on an anti-Bush screed because anti-Bush books sell. And I think that's what that's all about.

BRINKLEY: Well, and they're -- Bill, there are two aspects of what Richard Clarke's doing. The first part is anybody who's a specialist, which he is, as you mentioned, one of our great terrorist specialists. The fact is you're always frustrated. Your memos aren't being listened to. And in those ways, Clarke is a typical, high-level bureaucrat who has information to present again. He can't get heard. It happens in companies all the time. It happens in government.

The second one is Clarke, who has signed a book contract and I think came out with free press. And the fact is that when you sell a book, you go look for bullet points. You look for the two or three hooks that you present that's going to get some media attention. In this case, it's his critique, not of Bill Clinton, but of George W. Bush.

O'REILLY: Right.

BRINKLEY: That's where the connect moment is.

O'REILLY: But it was a calculated thing. And what they didn't calculate was Jim Angle, Fox News correspondent, having that tape recording. They didn't know about that, that showed that Clarke was kissing Bush's butt, saying he's the greatest terror warrior in 2002, and then he turns around. Well what are we supposed to think of Clarke? That just damages his credibility, does it not? I'll give you the last word.

BRINKLEY: Well, I think Richard Clarke is a very important government official. I trust what he says. I think his timing has a political edge to it. He claims he wanted to have it come out in December but was held up. And I think that he's somebody that has now become a historical footnote on the war on terror.

O'REILLY: Yes.

BRINKLEY: But I don't think that this is some issue that we're going to be hearing about in July and August. It's hit its high water mark.

O'REILLY: I think -- I don't either. I don't think it's going to have any relation to the presidential election. But I will throw in one worry that we haven't thrown in. I think he's an opportunist. And that's how I see that.

Doctor, as always, thank you very much. We appreciate it.

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