you’ve not addressed subsequent posts where we wonder if he’s simply allowed to ignore the subpeona w/o evoking executive privilege.
Not to speak for Biggirl, but where is she saying anything about Rove’s claim of privilege? Apart from Baldwin in post 12, where is anybody saying it?
Rove is under subpoena, Rove needs to answer that subpoena. Picking over the details and history of executive privilege is a hijack of this thread.
The irony. It burns.
That’s a very valid question.
Let’s consider some analogies from the Fifth Amendment, which contains a privilege everyone is familiar with – the right to avoid self-incrimination.
Now, the courts have defined this privilege pretty extensively. In order to preserve the privilege, we don’t permit the prosecution to call the accused as a witness. If he testifies, it can only be for his defense. But we go a bit farther than that: we don’t even permit the prosecutor to mention to the jury that the accused hasn’t testified. Such a mention is grounds for an instant mistrial… not only do we not require actual testimony, then, but we also protect the privilege by not permitting the state to argue that anyone should draw a negative inference from the right to not testify.
Now let’s return to executive privilege. How is it claimed? Unfortunately, we don’t have anywhere near the volume of case law that we have on Fifth Amendment privilege. But one valid way of looking at it might be that we have to balance out the competing interests. In fact, that’s exactly what US v. Nixon says we should do. When the testimony is required in a criminal case, the need for executive privilege is much less. Here, there’s no criminal case; Congress is holding hearings as part of its legislative function. (It must be, because only then can Congress consider inherent contempt).
So Congress’ goal is to gather information to assist it in making new laws. Against that backdrop, we have the recognized need for general privileged communications for the President. Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700 (1973), held that such Presidential communications are “presumptively privileged.”
On the other hand, to support the idea that a witness may simply ignore a subpoena without any kind of official assertion of privilege would be to eviscerate the power of Congress to subpoena, and that’s an absurd result.
At a minimum, then, in my view a witness should be required to respond to the subpoena, stating the specific grounds that he believes are privileged and thus beyond the reach of Congressional subpoena. If Congress has reason to believe that the executive does NOT claim the privilege the witness asserts, then burden is on the witness to show that he is acting in accordance with the President’s wishes – that is, that the President is exercising his privilege with respect to the evidence in question.
But you’ll note I said, “In my view…” above. That’s because there’s no case law laying out how this should work. It’s perfectly defensible (although I don’t personally agree) for Rove to take the position that Congress knows what it’s asking is covered and he doesn’t have to appear. This is how cases are developed-- I’m quoting from US v. Nixon now, guidance we wouldn’t have if Nixon had said, “Here you go – all the tapes are right here.”
Sure I have.
That one just took longer to type. 
Ok, but ya hadn’t when I typed that. ::kicks dirt::
(and thanks for not pointing out my continued misspellink) :smack:
Hmm. I would think he at least has to show up and make his “executive privilege” claim in person.
After all, is it not conceivable that they may wish to ask him questions that EP won’t cover?
“Did you indeed meet with the President on such-and-such date?”
“Who was present at this meeting?”
“Was the President asleep when the meeting was adjorned?”
Stuff like that.
But maybe Rove is a mind reading alien in disguise, and knows without a doubt that there would be no question asked that he could answer without violating EP.
But what is the legal requirement for asserting privilege? How must it be done?
I brought up the analogy of Fifth Amendment privilege for that reason. We don’t require a criminal defendant to get on the stand in front of the jury and say, “I won’t answer that because if I do, I’ll incriminate myself.” In fact, as I said, we don’t even let the prosecutor call him as a witness, and we don’t let the prosecutor argue to the jury anything about the accused’s failure to testify.
But now you want Rove to appear in person, and answer each question with an assertion of privilege?
Hey, maybe that’s exactly the process that we should use. For my own thinking, we should do something like that, so I don’t disagree in principle.
But it’s not an area of settled law. It’s not crazy for Rove to point to a Fifth Amendment analogy and say he should be able to privately respond, for example. For you to insist that Rove must sit in front of a committee is not crazy either – but it’s far from obvious.
When Biggirl inveighs against Rove (and against his lawyer, for she apparently believes that guilty people shouldn’t have lawyers to speak on their behalf, or something) she suggests that his conduct is obviously illegal. I don’t agree that it’s anywhere near obvious.
Again – I agree, in principle, with that. But it’s not black-letter law. It’s a solution that seems reasonable and makes sense to me. But I can’t say that someone who feels otherwise is obviously wrong. Or that he has an “ugly, fat ass” or that he’s hiding out at Fox headquarters.
But in your example, there’s already charges pending. To get a closer analogy, if you’re issued a subpoena to appear in court, are you not required to show up, even if you’d simply plead the fifth?
One other point that I’d like to emphasize. This comment suggests that only “state secrets” are privileged material; that a political adviser’s information is automatically beyond the reach of privilege.
In fact, the reverse is true. The whole point of executive privilege is to free presidential advisers from the bane of having to couch their advice in light of how it would be viewed publicly.
There is a legitimate public interest, in other words, in the President having an adviser who can candidly tell him, “Sir, if you do this, you’ll lose the Jewish vote,” without having to worry that the remark will come back to haunt him as a soundbite on the next election cycle. Candid advice, unfettered by concerns about publicity, is exactly what executive privilege protects.
Rove may not agree that it’s a closer analogy. In other words. the reason we prohibit prosecutors from saying to the jury, “Hey, this guy won’t even say under oath that he didn’t do it!” is that it poisons the mind of the jury.
If the purpose of executive privilege is prevent public disclosure of candid conversations with the President, then almost equally damaging would be a series of public questions answered publicly with “The President says that’s too embarrassing to tell you.”
See the problem?
Sorry to be dense: Is there a jury here to worry about?
Whose opinions are we trying not to taint?
I can’t add to the legal analysis in this thread, but I would like to say that I really, really, really like the word “frogmarch.”
Here’s the rationale for executive privilege:
So the existence of the privilege rests precisely on the grounds of public dissemination.
The “jury” in this case is the public.
Does the privilege exist to protect the president or his advisers from public embarrassment? Is this critical to the functioning of democratic government? I should think the opposite is true. People who are advising the president are essentially performing a public function. They should be accountable (at the very least, subject to being embarrassed) for their acts (advice) related to such public function.
But, actually, that’s not what happens. What happens is that the witness simply says “the president has asserted executive privilege regarding this communication.” And in this administration, the president has asserted it rather broadly, regardless of whether the information might turn out to be embarrassing or not. So I don’t think that the inference you make here would really be valid.
Ok. Thanks for that. I thought you might have been referring to the House Judiciary Commitee as the “jury” we needed to protect.
Bricker, you’ve made some very good explanations in this thread. However, what it seems to boil down to is that there is no good reason that the House could not frogmarch him to jail for ignoring the subpoena and let the courts thrash it out. Except, of course, that the House is a wimp.
Hell, I’d LOVE to travel back to the 70s and do so! And I felt so at the time, too.
Considering that he’s invoking executive privilege over the matter of the false prosecution of Don Siegelman, isn’t he basically saying that President Bush had something personally to do with that false prosecution?