# Can the WH invoke "executive privilege" to stop Rove & Miers from testifying? **URL:** \ **Category:** Great Debates\ **Created:** [March 21, 2007, 12:28am UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798 "2007-03-21T00:28:34Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [March 23, 2007, 4:39am UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/21 "2007-03-23T04:39:54Z")
[QUOTE=EddyTeddyFreddy] Is that the “Use it or lose it” doctrine of constitutional analysis? [/QUOTE] Woe, woe, woe is the electorate. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [March 23, 2007, 11:05am UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/22 "2007-03-23T11:05:47Z")
[QUOTE=EddyTeddyFreddy] Is that the “Use it or lose it” doctrine of constitutional analysis? [/QUOTE] Just out of curiosity, where in the Constitution is Congress’ oversight role mentioned, or on what text is it based? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 23, 2007, 12:14pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/23 "2007-03-23T12:14:26Z")
[QUOTE=RTFirefly] Just out of curiosity, where in the Constitution is Congress’ oversight role mentioned, or on what text is it based? [/QUOTE] "'‘We are of the opinion ‘that the power of inquiry–with process to enforce it–is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-- which not infrequently is true–recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry–with enforcing process–was regarded and employed as a necessary and appropriate attribute of the power to legislate-- indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.’’ McGrain v. Daugherty "‘‘The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.’’ Watkins v. United States. It doesn’t come from a specific grant in the Constitution, but rather as an essential part of the legislative function. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 23, 2007, 1:51pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/24 "2007-03-23T13:51:15Z")
[QUOTE=PatriotX] Woe, woe, woe is the electorate. [/QUOTE] Exactly. Just as the Court said in Woe vs. Raid. 🙂 ---
**Author:** ![EddyTeddyFreddy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eddyteddyfreddy/32/18796_2.png) [@EddyTeddyFreddy](https://boards.straightdope.com/u/EddyTeddyFreddy)\ **Post date:** [March 23, 2007, 3:09pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/25 "2007-03-23T15:09:09Z")
[QUOTE=Polycarp] Exactly. Just as the Court said in Woe vs. Raid. 🙂 [/QUOTE] Wow, that’s a lightning-fast trip through the judicial system for the case of the [New Bedford illegal aliens roundup.](http://www.boston.com/news/local/massachusetts/articles/2007/03/20/legislative_committee_weighs_in_on_new_bedford_immigration_raid/) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 23, 2007, 3:45pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/26 "2007-03-23T15:45:03Z")
To give the devil his due, [here](http://www.usdoj.gov/olc/executiveprivilege.htm) are the claims of then-Attorney General John Ashcroft, founded in Warren Burger’s “core duties” thesis, with respect to a clearly parallel situation in 2001, where a Congressional committee was seeking to subpoena information from DOJ cases handled under Janet Reno: > [@](#): > > I strongly believe that releasing or otherwise making these extremely sensitive prosecutorial decisionmaking documents available to Congress would compromise the ability of the Department of Justice to assist you in discharging your constitutional law enforcement responsibilities. The authority to investigate and prosecute criminal suspects is one of the core executive powers vested in the President by the Executive Power and Take Care Clauses of Article II of the Constitution. In order to assist the President in fulfilling his constitutional duty, the Attorney General and other Department decisionmakers must have the benefit of candid and confidential advice and recommendations in making investigative and prosecutorial decisions. > > ``` > The need for confidentiality is particularly compelling in regard to the highly sensitive prosecutorial decision of whether to bring criminal charges. The Department's attorneys are asked to render unbiased, professional advice about the merits of potential criminal cases. The formal mechanism by which this process occurs is the preparation of prosecution and declination memoranda. In short, these documents review the strength of the evidence, substantive legal issues, policy considerations and overall likelihood of success if the case were to proceed. If these deliberative documents are subject to congressional scrutiny, we will face the grave danger that prosecutors will be chilled from providing the candid and independent analysis essential to the sound exercise of prosecutorial discretion and to the fairness and integrity of federal law enforcement. As the Supreme Court described its concern about a chilling effect: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." United States v. Nixon, 418 U.S. 683, 705 (1974). The Court observed that "the importance of this confidentiality is too plain to require further discussion." Id. > > Just as troubling, the prospect of congressional review might force prosecutors to err on the side of investigation or prosecution simply to avoid public second-guessing. This would undermine public and judicial confidence in our law enforcement processes. It is for all of these reasons that the Supreme Court has unanimously recognized 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." Id. > > ``` Here is [the LandmarkCases.org summary](http://www.landmarkcases.org/nixon/privilege.html) of the “executive privilege” argument as decided in U.S. v. Nixon: > [@](#): > > n the Supreme Court case of United States v. Nixon, Nixon’s lawyers argued that executive privilege should extend to certain conversations between the president and his aides, even when national security is not at stake. They argued that in order for aides to give good advice and to truly explore various alternatives, they had to be able to be candid. If they were going to issue frank opinions, they had to know that what they said was going to be kept confidential. > > In the opinion, the Supreme Court conceded that there is indeed a privilege for “confidential executive deliberations” about matters of policy having nothing to do with national security. This privilege is constitutionally based, deriving form the separation of powers. However, the Court held that this privilege is not absolute but can be overcome if a judge concludes that there is a compelling governmental interest in getting access to the otherwise privileged conversations, as in the case of the Nixon tapes. I would submit that what is true for a judge is _fortiori_ true for the Congress in its Constitutionally mandated oversight role. ---
**Author:** ![BJMoose](https://avatars.discourse-cdn.com/v4/letter/b/5fc32e/32.png) [@BJMoose](https://boards.straightdope.com/u/BJMoose)\ **Post date:** [March 23, 2007, 4:11pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/27 "2007-03-23T16:11:19Z")
**Czarcasm** may be on the right track. A couple of days back someone on _Countdown_ (I think it was one of the Democratic senators now nipping at the administration’s heels, but by now y’all should know better than to trust _my_ memory) said that Executive Priviledge can apply only to conversations with the president. Chats between aides, no matter how important they may be, cannot be covered by EP. This bunch gets more Nixonian with each day. Heck, they’ve even brought Fred Fielding into the fray (he was John W. Dean III’s assistant under Nixon). ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [March 23, 2007, 4:32pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/28 "2007-03-23T16:32:29Z")
[QUOTE=Polycarp] I would submit that what is true for a judge is _fortiori_ true for the Congress in its Constitutionally mandated oversight role. [/QUOTE] So, if I read your cite correctly, you’re telling me that Bush is using the exact same argument that Nixon used and, consequently, lost with? -Joe ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [March 23, 2007, 4:41pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/29 "2007-03-23T16:41:23Z")
[QUOTE=RTFirefly] Just out of curiosity, where in the Constitution is Congress’ oversight role mentioned, or on what text is it based? [/QUOTE] It’s part of their implied powers. It’s based on this part of the Constitution: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” > **[U.S. Senate: 404 Error Page](https://www.senate.gov/pagelayout/general/one_item_and_teasers/file_not_found.htm)** > > 404 Error Page ``` Underlying the legislature's ability to oversee the executive are democratic principles as well as practical purposes. John Stuart Mill, the British Utilitarian philosopher, insisted that oversight was the key feature of a meaningful representative body: “The proper office of a representative assembly is to watch and control the government.”1 As a young scholar and future President, Woodrow Wilson—in his 1885 treatise, Congressional Government—equated oversight with lawmaking, which was usually seen as the supreme function of a legislature. He wrote, “Quite as important as legislation is vigilant oversight of administration.”2 The philosophical underpinning for oversight is the Constitution’s system of checks and balances among the legislature, executive, and judiciary. James Madison, known as the “Father of the Constitution,” described the system in Federalist No. 51 as establishing “subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other.” In sum, oversight is a way for Congress to check on, and check, the executive. **The U.S. Constitution** Although the Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s impressive array of enumerated powers.3 The legislature is authorized to appropriate funds; raise and support armies; provide for and maintain a navy; declare war; provide for organizing and calling forth the national guard; regulate interstate and foreign commerce; establish post offices and post roads; advise and consent on treaties and presidential nominations (Senate); and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The authority to oversee derives from these constitutional powers. Congress could not carry them out reasonably or responsibly without knowing what the executive is doing; how programs are being administered, by whom, and at what cost; and whether officials are obeying the law and complying with legislative intent. The Supreme Court has legitimated Congress’s investigative power, subject to constitutional safeguards for civil liberties. In 1927, the Court found that, in investigating the administration of the Department of Justice, Congress was considering a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”4 There is a long history behind executive reports to Congress. Indeed, one of the first laws of the First Congress—the 1789 Act to establish the Treasury Department (1 Stat. 66)—called upon the Secretary and the Treasurer to report directly to Congress on public expenditures and all accounts. The Secretary was also required “to make report, and give information to either branch of the legislature ... respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.” ``` ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 23, 2007, 7:40pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/30 "2007-03-23T19:40:00Z")
That’s how I’d understand it, yes. **RTFirefly** : For validation of the Constitutional stature of Congressional oversight, see **Hamlet** ’s post #23 in addition to the link and quotes from the Senate website provided by **PatriotX**. 🙂 ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [March 23, 2007, 7:46pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/31 "2007-03-23T19:46:12Z")
[QUOTE=Polycarp] That’s how I’d understand it, yes. **RTFirefly** : For validation of the Constitutional stature of Congressional oversight, see **Hamlet** ’s post #23 in addition to the link and quotes from the Senate website provided by **PatriotX**. 🙂 [/QUOTE] What about my question? Isn’t Bush trying to use the same argument that failed for Nixon more than 30 years ago? -Joe ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [March 23, 2007, 9:14pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/32 "2007-03-23T21:14:56Z")
Pshaw, ancient history. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 23, 2007, 10:02pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/33 "2007-03-23T22:02:52Z")
[QUOTE=Merijeek] What about my question? Isn’t Bush trying to use the same argument that failed for Nixon more than 30 years ago? -Joe [/QUOTE] The first sentence in my answer that you quoted was supposed to be in response to you, and to have used the “quick quote” feature to quote you. When I saw that didn’t work to quote your post (after making a quick post on another board), I went to edit my post to indicate it was responding to you – and the edit function loaded S - L - O - W - L - Y. I typed your name, bolded, as fast as the keystrokes would display them, and hit “submit edit” – and got the supercilious VBB message that I should have done it before edit time had elapsed. In view of the fact that I documented to the Powers That Be that this was a recurring problem, I simply said “Fuck it!” at that point and decided it was not important enough seemingly to anyone to rattle anyone’s chain about. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [March 23, 2007, 10:04pm UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/34 "2007-03-23T22:04:14Z")
[QUOTE=Polycarp] **RTFirefly** : For validation of the Constitutional stature of Congressional oversight, see **Hamlet** ’s post #23 in addition to the link and quotes from the Senate website provided by **PatriotX**. 🙂 [/QUOTE] I have read them, and now consider myself enlightened. (Ooooommmm…) An amusing idea for a Dem counterstrike crossed my mind earlier today. Congressional Dems to Bush: “You think those conversations with your aides are privileged? Fine. Let’s see how that works if you don’t _have_ any aides. If they won’t testify, then in the next budget, the only funding for White House operations will be for the salaries of the President and Vice-President. Oh, and we’ll keep on paying the electric and water bills. But that’s it. Have fun being the Unitary Executive.” [QUOTE=Merijeek] What about my question? Isn’t Bush trying to use the same argument that failed for Nixon more than 30 years ago? -Joe [/QUOTE] Rule of Five, dude. See any of the Justices from 1974 still on the Court? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 24, 2007, 12:52am UTC](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798/35 "2007-03-24T00:52:04Z")
[QUOTE=Merijeek] What about my question? Isn’t Bush trying to use the same argument that failed for Nixon more than 30 years ago? [/QUOTE] Fred Fielding, the old Watergate hand now serving as WH Counsel in similar conditions, is hard at work. [Previous page](https://boards.straightdope.com/t/can-the-wh-invoke-executive-privilege-to-stop-rove-miers-from-testifying/396798.md?page=1)