The battle over document requests relating to the ongoing congressional Solyndra investigation escalated this week when Republicans on the House Energy and Commerce Committee all but dared the White House to exercise its power of executive privilege.

After being rebuffed by White House legal counsel in their request for all documents relating to the bankrupt solar company that received massive government loans -- including anything on the president's BlackBerry -- dating back to Obama's first day in office, committee Chairman Fred Upton (R-Mich) and his lead investigator Rep. Cliff Stearns (R-Fla.) informed the White House that "unless the President actually asserts a valid claim of executive privilege, the Committee is entitled to the documents responsive to its request."

SPECIAL REPORT

Solyndra, a solar manufacturer that was given a $535 million loan guarantee and touted by the White House as a model for the clean energy economy, has filed for bankruptcy. E&E examines how it got there and what it means. Click here to read the report.

But Republicans' desire to tangle with the Obama administration over a claim of executive privilege might be less about plunging into that particular murky pool of constitutional law and more about the optics that such a fight would generate.

Some Republicans are already picturing the headlines.

"That is the ultimate trump card for the White House to claim executive privilege," said Sen. John Cornyn (R-Texas), a former Texas attorney general and state Supreme Court judge. "Once the claim occurs it's pretty hard to change that. But it's hard for a White House that has claimed to be the most transparent in American history to reconcile those two positions."

Cornyn was referring to the promise that Obama made on the campaign trail and during his first day in office to make his administration the most open and transparent ever.

It is an ideal that many people believe would be tarnished by the use of an executive branch power that was not well known outside constitutional law circles until President Nixon used it as he sought to contain the Watergate scandal, which eventually lead to his resignation.

More recently, former President George W. Bush employed executive privilege extensively to block congressional requests for documents and testimony from current and former aides.

A president may employ executive privilege in order to not comply with a subpoena or court order by claiming that answering the request would inhibit government operations or decisionmaking. The power can offer broad protections to the president and his immediate staff but it is not absolute, and the very invocation of the phrase can have negative political consequences, as Nixon found out.

Today, even some Republicans concede that Bush's overuse of the power probably served to weaken it.

Sen. Lindsey Graham (R-S.C.) said this week that Bush "overplayed his hand" when it came to some of the executive privileges he claimed, especially in relation to his powers during time of war.

Some political scientists believe that Bush's overuse of the power certainly weakened him politically and contributed to his historically low poll numbers when he left office.

"You can't disentangle the politics from executive privilege, not in today's polarized environment," said Mitch Sollenberger, an assistant professor of political science at the University of Michigan, Dearborn, who has written about the subject.

"It's not [Obama's] legal advisers so much as the political advisers that are probably telling him, 'Look even if we can claim executive privilege here and we're in the right, claiming it makes us look like we're hiding something,'" Sollenberger said.

But even if that is the case, the White House also has not been shy about telling the Energy and Commerce Committee leaders that their requests are starting to tread on privileged legal territory -- though they have stopped short of using the phrase "executive privilege."

"Your most recent request for internal White House communications from the first day of the current administration to the present implicates longstanding and significant institutional executive branch confidentiality interests," White House legal counsel Kathryn Ruemmler told the committee last week.

She added that "encroaching upon these important interests is not necessary" because the 900 pages of documents already provided by the White House, plus the ongoing cooperation of three executive branch agencies, should be enough to satisfy investigators.

Sollenberger said the Bush administration employed the same "document dumping" tactic in its many battles with Congress.

"It's a media strategy, it makes the administration look transparent," he said. But, he added, it also begs the question of what the White House is holding back.

"Something we risk having happen if we're just going to adopt the White House's view that they've been cooperative ... ultimately they are being the judge and jury on what should be disclosed to Congress," Sollenberger said. "You've got to remember that these branches are co-equal."

Yesterday the Energy and Commerce Committee charged that it is no longer just the White House that is holding back, but that the Department of Energy is now refusing to make certain legal staffers available to testify under oath.

The White House's argument has been that everything that has surfaced to date affirms the administration's position that the decisions made with regard to the half-billion-dollar Solyndra loan were made by career staffers at DOE acting on what they believed at the time was in the best interests of the U.S. taxpayer.

One Democratic operative with knowledge of the document fight said that by pushing for the White House to invoke executive privilege, Republicans have shown that they are more interested in escalating the political battle over Solyndra rather than conducting a full and fair review of the tens of thousands of pages they have already received and the additional documents that continue to be provided by the Department of Energy, the Treasury Department and the Office of Management and Budget.

But the operative said that the White House is not likely going to help Republicans escalate their political battle over Solyndra by taking their dare to invoke executive privilege.

"If House Republicans want to breach a historically higher threshold of protected materials they are going to have to have a factual predicate to do so," the operative said. "To date they're not there."