# House Judiciary Committee subpoenas Rove to testify 7/10/08 **URL:** \ **Category:** Great Debates\ **Created:** [May 22, 2008, 8:24pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281 "2008-05-22T20:24:50Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [May 28, 2008, 12:01am UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/21 "2008-05-28T00:01:22Z")
[QUOTE=BrainGlutton] At this stage of the development of constitutional law, just about **everything** related to executive privilege is unclear. Not because the doctrine is new – it goes back to the Washington Administration – but because there have been so few test cases yielding such narrow rulings. [/QUOTE] (emphasis mine) Cite? My understanding is that executive privilege first came about when Chief Justice Burger invented it so that he could deny it to Nixon. _U.S. v. Nixon_, 418 U.S. 683 (1974); _see also Mississippi v. Johnson_, 71 U.S. (4 Wall.) 475 (1867) (refusing to entertain a suit attempting to enjoin Pres. Andrew Johnson’s enforcement of the Reconstruction Act). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2008, 12:22am UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/22 "2008-05-28T00:22:01Z")
[QUOTE=Randy Seltzer] (emphasis mine) Cite? My understanding is that executive privilege first came about when Chief Justice Burger invented it so that he could deny it to Nixon. _U.S. v. Nixon_, 418 U.S. 683 (1974); _see also Mississippi v. Johnson_, 71 U.S. (4 Wall.) 475 (1867) (refusing to entertain a suit attempting to enjoin Pres. Andrew Johnson’s enforcement of the Reconstruction Act). [/QUOTE] > [@](#): > > When future Supreme Court justice Antonin Scalia, then an assistant attorney general, defended the concept before Congress, he pointed to George Washington’s refusal in 1796 to turn documents about the negotiation of the Jay Treaty over to the House of Representatives. Washington didn’t directly invoke any privilege; what he said was “To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent,” which sounds like he’s asserting a diplomatic secrets privilege. But Washington also argued that the House had no standing to make such a demand anyway, as it has no constitutional role in the treaty-making process; by contrast, he pointed out, he had already provided all relevant documents beforehand to the Senate, whose responsibilities do include providing advice and consent in the forming of treaties. > > An earlier episode involving Washington and executive privilege had taken place in 1792, when Congress asked the administration for information regarding the failure of a U.S. military expedition. Washington discussed the issue with his cabinet; according to notes kept by Secretary of State Thomas Jefferson, all agreed that a president has a right to withhold information when it’s in the public interest to do so. This is one of those cases, though, where discretion ultimately won out – the administration provided the information to Congress after all. > > Another early justification for executive privilege was that it interfered with the president’s job. In a previous staff report I discussed Jefferson’s assertion of privilege during the Aaron Burr trial. Jefferson worried that if he was subject to subpoena courts could “bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties.” Jefferson found this inconsistent with the notion of separation of powers. (President Clinton would no doubt find these concerns reasonable.) > > According to a 1958 memo prepared by Attorney General William Rogers, as of then 17 presidents had asserted executive privilege on 27 occasions. [http://www.straightdope.com/mailbag/mexecprivilege.html](http://www.straightdope.com/mailbag/mexecprivilege.html) ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [May 28, 2008, 12:37am UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/23 "2008-05-28T00:37:55Z")
[QUOTE=Gfactor] … [/QUOTE] Hey! No fair citing yourself. But in any case, I suppose you’re right: I failed to read the second half of the sentence. That is, the doctrine may be old, but it was not acknowledged by the SCOTUS until the 1970s. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2008, 12:56am UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/24 "2008-05-28T00:56:33Z")
[QUOTE=Randy Seltzer] Hey! No fair citing yourself. But in any case, I suppose you’re right: I failed to read the second half of the sentence. That is, the doctrine may be old, but it was not acknowledged by the SCOTUS until the 1970s. [/QUOTE] Right. Also, there are parts of it that have never really been controversial (state secrets, for example). In particular, the deliberative privilege has been controversial, especially the breadth of that privilege (does it apply to VP? does it apply to conversations with unelected consultants and members of private industry?) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 28, 2008, 1:01am UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/25 "2008-05-28T01:01:58Z")
[QUOTE=Gfactor] I’d expect the privilege to run with the office, though, so a new president would be able to waive the privilege. Certainly an ex-president could not assert executive privilege against a sitting president; and it’s equally certain (to me) that a sitting president can waive the privilege–it’d doesn’t belong to the witness. Not that this necessarily contradicts what you say; I’m just expanding on your comment that the privilege doesn’t vanish when adminstrations change. [/QUOTE] I certainly agree that the privilege belongs to the president, and it’s to him (or her) to waive it as seems appropriate. The privilege doesn’t belong to George W. Bush, in other words; it belongs to the President of the United States. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 29, 2008, 2:36pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/26 "2008-05-29T14:36:24Z")
Now Rep. Debbie Wasserman Schultz (D-FL) [says Rove will be arrested if he doesn’t testify.](http://briefingroom.thehill.com/2008/05/28/wasserman-schultz-judiciary-committee-willing-to-arrest-rove-if-he-doesnt-testify/) ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 29, 2008, 3:10pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/27 "2008-05-29T15:10:32Z")
[QUOTE=Bricker] I certainly agree that the privilege belongs to the president, and it’s to him (or her) to waive it as seems appropriate. The privilege doesn’t belong to George W. Bush, in other words; it belongs to the President of the United States. [/QUOTE] But so far as Bush is president for a set time, doesn’t privilege apply throughout that time to some extent for people in his employ? It seems to me that any president can only make decisions on whether to waive executive privilege when it comes to his own advisers in his own term. Otherwise, those advisers have very little protection indeed - as it is, the privilege that covers their consultations with the president is a limited one and can be deemed an invalid claim if a court decides other considerations win out. Other forms of privilege seems worth comparing here - attorney-client privilege cannot be broken if, say, another attorney takes on the case, right? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [May 29, 2008, 3:38pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/28 "2008-05-29T15:38:53Z")
[QUOTE=Bricker] I certainly agree that the privilege belongs to the president, and it’s to him (or her) to waive it as seems appropriate. The privilege doesn’t belong to George W. Bush, in other words; it belongs to the President of the United States. [/QUOTE] That reasoning seems right. But are there any actual instances in which one president has waived executive privilege regarding information the former president insisted on invoking the privilege over? -FrL- ---
**Author:** ![Spiff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spiff/32/9852_2.png) [@Spiff](https://boards.straightdope.com/u/Spiff)\ **Post date:** [May 29, 2008, 4:33pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/29 "2008-05-29T16:33:32Z")
[QUOTE=BrainGlutton] Now Rep. Debbie Wasserman Schultz (D-FL) [says Rove will be arrested if he doesn’t testify.](http://briefingroom.thehill.com/2008/05/28/wasserman-schultz-judiciary-committee-willing-to-arrest-rove-if-he-doesnt-testify/) [/QUOTE] Yes! I came to this thread to mention that Congress has the power of “inherent contempt” and has the Sergeants-at-Arms to enforce it. Good on Rep. Wasserman Schultz for having the guts to use it, and I hope it happens. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [May 29, 2008, 5:01pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/30 "2008-05-29T17:01:28Z")
Except that it doesn’t say that. It says they’re “willing” to arrest him. That’s CYA politispeak so that later, after the Big Bad Wolf has blown hot air on them and scared them to death, they can say, “Well, we were willing to do it, but then X happened and gosh, it just wasn’t possible/practical/wouldn’t-have-mattered.” ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 29, 2008, 5:12pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/31 "2008-05-29T17:12:34Z")
[QUOTE=Spiff] I came to this thread to mention that Congress has the power of “inherent contempt” and has the Sergeants-at-Arms to enforce it. [/QUOTE] Good, 'cause the U.S. Attorney for DC sure ain’t gonna! :mad: [Inherent contempt.](http://en.wikipedia.org/wiki/Inherent_contempt) I understand there is actually a holding cell somewhere in the Capitol Building. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 29, 2008, 5:41pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/32 "2008-05-29T17:41:49Z")
[QUOTE=Mr. Moto] But so far as Bush is president for a set time, doesn’t privilege apply throughout that time to some extent for people in his employ? It seems to me that any president can only make decisions on whether to waive executive privilege when it comes to his own advisers in his own term. Otherwise, those advisers have very little protection indeed - as it is, the privilege that covers their consultations with the president is a limited one and can be deemed an invalid claim if a court decides other considerations win out. Other forms of privilege seems worth comparing here - attorney-client privilege cannot be broken if, say, another attorney takes on the case, right? [/QUOTE] That’s an inapposite comparison, because the privilege belongs to the client, not the lawyer. Eight attorneys can be involved; the privilege can be waived only by the client. Now, your objection is well-taken insofar as Bush’s advisers vs. the next president’s advisers. But there are two factors that cut the other way. First, every adviser knows that it’s for the President, not him, to decide to reveal or conceal the communication given. If Bush decides it’s in the public interest to reveal the energy meetings agenda, for example, his energy advisers cannot complain. The second factor is MAD - mutual assured destruction. Sure, President Obama could waive the privilege protecting Bush’s discussions. But then President Santorum could waive Obama’s privilege for anything controversial that occurred during his term. There’s a vested interest in respecting the privilege that will act to lessen the chance of casual piercing of the privilege. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 29, 2008, 5:48pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/33 "2008-05-29T17:48:29Z")
[QUOTE=Bricker] The second factor is MAD - mutual assured destruction. Sure, President Obama could waive the privilege protecting Bush’s discussions. But then President Santorum could waive Obama’s privilege for anything controversial that occurred during his term. There’s a vested interest in respecting the privilege that will act to lessen the chance of casual piercing of the privilege. [/QUOTE] I do agree that in general, presidents act to protect executive branch interests. This has been the pattern for over two hundred years and applies to presidents of many different parties - many of which no longer exist. In part because this is true, though, I don’t know that there is any case of a president waiving privilege for a claim made by a previous president - and I don’t know if executive privilege is even thought of in this way by those that invoke it. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 29, 2008, 5:55pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/34 "2008-05-29T17:55:38Z")
[QUOTE=Bricker] The second factor is MAD - mutual assured destruction. Sure, President Obama could waive the privilege protecting Bush’s discussions. But then President Santorum could waive Obama’s privilege for anything controversial that occurred during his term. [/QUOTE] So much the better! Then Obama, knowing that, will make **sure** he has nothing to hide! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 29, 2008, 6:20pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/35 "2008-05-29T18:20:56Z")
[QUOTE=Mr. Moto] In part because this is true, though, I don’t know that there is any case of a president waiving privilege for a claim made by a previous president - and I don’t know if executive privilege is even thought of in this way by those that invoke it. [/QUOTE] I’ve read some stuff written by Presidential advisors (Attorney General and Office of Legal Counsel) that cover this IIRC. I won’t be able to get at it until the weekend though. _But Cf._, > [@](#): > > A similar reality exists with regard to the President’s use of the pardon power. It does not appear that an incoming President has the power to revoke or revise his predecessor’s grants of pardons and clemencies. An incoming President could participate in an investigation of his predecessor’s pardon activity, and could encourage his Justice Department to criminally prosecute anyone who is found to have violated the law in the pardon process. Some of President Clinton’s pardons did spark investigations, but President Bush’s administration asserted executive privilege, denying investigators access to documents surrounding the pardons. This executive privilege appears to have been asserted to avoid setting the precedent of permitting access to documents related to the President’s use of the pardon power. Jack M. Beermann, _Presidential Power in Transitions_, 83 B.U.L. Rev. 947 (2003) ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 29, 2008, 6:47pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/36 "2008-05-29T18:47:10Z")
That’s a good point - it kind of reinforces my earlier point about the executive branch protecting its inherent power. Note that this new claim by Bush did not change any previous claims by his predecessor - though it is interesting to note that in an earlier pardon controversy Clinton had also invoked the privilege. I’m of the view that had things gone to court in the pardon matter executive privilege claims couldn’t have been sustained - there were just too many questions about the pardons. But these things take either a court to resolve or negotiation between the branches. ---
**Author:** ![BarnOwl](https://avatars.discourse-cdn.com/v4/letter/b/e95f7d/32.png) [@BarnOwl](https://boards.straightdope.com/u/BarnOwl)\ **Post date:** [May 29, 2008, 7:11pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/37 "2008-05-29T19:11:42Z")
Jonathan Turley, law professor, Columbia University, says Congress can get around Executive privilege by asserting they’re investigating a Federal Crime (Warrantless Wire Tapping. Also says, …the Supreme Court ruled in United States v. Nixon that, “where the President asserts only a generalized need for confidentiality, [executive privilege] must yield to the interests of the government and defendants in a criminal prosecution.” [http://thinkprogress.org/2007/06/28/nsa-turley/](http://thinkprogress.org/2007/06/28/nsa-turley/) Can all this be true? If so, why are the friggin’ dems being so prissily cautious in this matter? I’m not a lawyer, of course. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 29, 2008, 7:18pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/38 "2008-05-29T19:18:58Z")
Yeah, well, they’d have to assert this to someone. A court would serve nicely. And said court would also serve as a handy place to hear any individual executive privilege claims, as in the case of documents a judge may rule on the validity of that claim after an in camera review. In the case of testimony the claims can be evaluated and ruled on as they come up. ---
**Author:** ![BarnOwl](https://avatars.discourse-cdn.com/v4/letter/b/e95f7d/32.png) [@BarnOwl](https://boards.straightdope.com/u/BarnOwl)\ **Post date:** [May 29, 2008, 7:25pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/39 "2008-05-29T19:25:50Z")
[QUOTE=Mr. Moto] Yeah, well, they’d have to assert this to someone. A court would serve nicely. And said court would also serve as a handy place to hear any individual executive privilege claims, as in the case of documents a judge may rule on the validity of that claim after an in camera review. In the case of testimony the claims can be evaluated and ruled on as they come up. [/QUOTE] What about the SCOTUS ruling re exec. priv.? Isn’t that meaningful? Can Bush ignore it with impunity? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [May 29, 2008, 7:27pm UTC](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281/40 "2008-05-29T19:27:26Z")
Wrong thread. [Previous page](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281.md?page=1) [Next page](https://boards.straightdope.com/t/house-judiciary-committee-subpoenas-rove-to-testify-7-10-08/450281.md?page=3)