Karl Rove's Executive Privilege
May Vanish on January 20, 2009
It will be up to Obama whether Executive Privilege
can be invoked for Rove
By Paul Abrams
Huffington Post, November 10, 2008
go to original
See Article II.1
Obstructing Inquiry and Detection
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Karl Rove: His pursuit
of executive power may actually lead to new
limitations upon it.
Source: blog.mlive.com |
The Constitution breathes nary a word about Executive
Privilege. Nonetheless, it has been invoked by Presidents
since Washington to prevent or limit disclosure to
Congress of internal documents and testimony. The
rationale for such a privilege has been stated in
various ways, but all invoke the need of the Executive
for unfettered conversations and analyses that, if
subject to disclosure, might be stated too carefully
and thus deprive the Executive of a robust discussion
of facts and opinions that is needed for the best
decisionmaking.
There are very few Court cases dealing with Executive
Privilege, because Congress has usually not elected
to trigger a confrontation, and the Executive has
often negotiated terms of compliance "voluntarily"
so that the actions could not be treated as precedent
defining the limits of the Privilege in subsequent
cases.
Executive Privilege was finally tested in Watergate,
United States v Nixon. The Supreme Court recognized
the existence of the privilege (where were the strict
constructionists then?), but also determined that
the privilege is not absolute and can be overcome.
The outlines of the Privilege, however, have never
been determined with any clarity. It is generally
asserted that the Privilege has to be invoked by the
President (it is, after all, the Executive that is
claiming the protection) and that its scope may be
limited to actual meetings/conversations/memos to
the President himself, although there is language
in the few Court cases speaking more generally about
"high government officials".
Come January 20, 2009, high noon, Karl Rove will
be in an interesting position.
He has refused to testify before Congress about the
firings of the US Attorneys, although it is not clear
whether it is he or President Bush who claimed Executive
Privilege. It would be difficult to believe that a
Court would allow anyone other than the President
to claim the Privilege, as it is not a personal right,
but, as described above, an extrapolation of the Article
II powers of the Office.
The disastrous Bush Presidency has left the United
States with a host of problems, and diminished resources
with which to handle them. One area in which it did
substantial damage was to the Constitution itself.
Thus, while the economy, energy, education and a redirection
of foreign policy are all very pressing matters, the
new Congress cannot ignore restoring the integrity
of the Constitution.
Some time after January 20, 2009, therefore, the
new Congress will issue new subpoenas for the testimony
of Rove concerning the firing of the US Attorneys.
George W Bush will no longer be President, and thus
no longer embody the Executive to claim the Privilege.
In what may be the most delicious of ironies, it
is George W Bush himself who provides the only precedent
for determining where the power lay for invoking Executive
Privilege for acts committed in another President's
Administration. It was President Bush, not ex-President
Clinton, not ex-Attorney General Janet Reno, who invoked
Executive Privilege to deny disclosure of sought details
of Clinton's Attorney General Janet Reno, the scandal
involving FBI misuse of organized-crime informants,
and Justice Department deliberations about Clinton's
fundraising tactics.
It will, therefore, be up to President Obama to determine
whether Executive Privilege ought to be invoked for
Karl Rove. In addition to being the first Afro-American
elected President of the United States, Barack Obama
will also be the first Constitutional scholar to occupy
the Oval Office, a situation dripping with more irony
as the Republicans tried to brand him as un-American
and the Constitution itself, when written, counted
him as only 3/5th of a man.
It is not Barack Obama's style, nor is it proper,
for such a weighty matter to be determined by partisan
considerations. Thus, I would expect President Obama's
White House Counsel to gather the facts, and for the
President to make a dispassionate decision on whether
Executive Privilege should be invoked.
In order for President Obama to decide whether to
invoke the Privilege for Rove, his Justice Department
will have to be told all the facts. Did Rove speak
to the President about the Attorney firings or not?
Did he speak to the Vice-President? What was his involvement
in the entire sordid affair? If Rove does not reveal
any of these facts, Obama can certainly not invoke
the Privilege based upon nothing.
My guess is that President Obama would not invoke
the Privilege to prevent Rove's testimony, regardless
of the above facts, because it involves acts or statements
that are not the proper purview of the White House.
For justice to be accepted, the public must indeed
know that it is fair, and President Obama would not
want to reinforce the notion that specific cases were
allowable matters of discussion within the White House
or directives to the Justice Department.
Rove may also be compelled to testify about other
matters such as the vendetta against former Governor
Donald Siegelman who spent jail time on what appear
to be trumped up charges, about his role in the Valerie
Plame matter and his practice of using non-Government
email addresses to conduct business, just to name
a few.
Rove may attempt to stall by invoking Executive Privilege
himself. His argument would have to be that he, himself,
relied upon the confidentiality of the conversations.
He would also have to indicate that he did, or did
not, talk to the President about these specific issues.
But, it should not matter. Executive Privilege belongs
to the Office, and the assertion of "personal
harm" is not germane. As with Bush and Janet
Reno, the President at any given time determines what
is considered harmful to the Office, and the President
will be Barack Obama.
Nor will Rove's inevitable pardons rescue him. Indeed,
they may facilitate getting his testimony since he
will not be able to assert 5th Amendment rights.
The pardon will not protect him against subsequent
acts of contempt of Congress or perjury.
Paradoxically, the man who did as much as anyone
except Dick Cheney to upset the balance among the
branches by arrogating unlimited power to the President
may be responsible for establishing greater constraints
on Executive Privilege.
