Frogs march? They must do it at night when no one is looking.
Personally, I believe we should hold our public officials to a higher standard than ordinary citizens, not a lower. And this concept of executive privilege is to easily abused to make the rationale you’ve described here, Bricker, worth it. Where does it end? Basically, the president can claim it for anything he says he can claim it for, just as he can designate anyone he wants to an enemy combatant.
People start mocking you about tin foil hats when you compare this to Nazism, but the fact is, the Nazis didn’t begin by saying “Let’s round up all the Jews, Gypsies, and other ‘inferiors’, put them in concentration camps, and slaughter them wholesale.” Huge abuses start out as small abuses. This kind of stuff scares the heck out of me, far worse than 9/11 ever did (that enraged me, didn’t scare me). It scares me that you, a lawyer, aren’t more upset by the man totally dismissing a Congressional supeona. I understand there is a precedent for executive privilege, whether or not it is a good precedent. But for refusing to show up?
That’s exactly right.
It seems to me (and IAAL but this area isn’t my specialty) that this is more akin to a grand jury subpeana than to a criminal trial. A person called to testify there may certainly assert his 5th amendment right against self incrimination, but he has to appear and assert the right.
Yes, it is evocative. But of what? Frogs do not march; they lie still, eyes bulging, until there is a sudden leap. How can someone be “frogmarched”? I see a vague image of something out of Lewis Carroll with stern-looking bewigged bailiffs leading away a huge frog wearing a waistcoat and gaiters*, trailing puddles of green slime** as a boisterous crowd of mixed mammalian and insectile creatures cheer wildly, but things dim and fade when it comes to the actual “frogmarching”. Is there hopping, goose-stepping, slinking, stomping, baby steps or what? Frogs just aren’t capable of marching in the normal scheme of things, so what are we talking about here? 
:smack: 
*What are gaiters?
**This actually does convey a Roveian image, come to think of it.
Um… yes.
That’s exactly what it protects: public embarrassment as a result of candid advice and discourse.
That’s not the law, though. And since the Supreme Court found a constitutional basis for its discovery of executive privilege, the way to change the law to conform to your vision is to amend the Constitution.
I’ve always thought “frogmarching” referred to the practice of escorting a prisoner in arm and leg shackles, tied together, so that the prisoner has to take short, shuffling steps, and is all hunched over.
Then that is absolutely what they should do with Rove. And it should be put on as a pay-per-view. We could probably wipe out the national debt.
Oh, sure - no argument there. That’s the way for the House to force the resolution of the issue.
I don’t object to the idea that the House thus acts. I object to the OP’s implication that Rove’s position is illegal (“Our justice system is a big joke to this administration”) or otherwise without reasonable support.
Rove and his team have one interpreation – obviously a self-serving one – and the House Democrats have another interpretation – also a self-serving one. Neither one is crazy-ass wrong.
the statement “our justice system is a big joke to this administration” doesn’t imply a belief that Rove’s position is illegal. Indeed, since their position is to (essentially) ignore a legal order, would support the statement that our justice system is a big joke to them.
I mean, at least Libby went through some pretense of a trial before Bush wiped it away. I believe that there will be a number of blanket pardons issued at the end of this debacle.
Heh heh heh…
Isn’t a criminal defendant who refuses to testify basically saying he’s guilty?
More to the point – no. First of all, you call it a “false prosecution” – where do you get that certainty from? The appeal, as I understand it, relates to error in the jury instructions. I’ll also note, just for what it’s worth, that a previous attempt to prosecute Siegelman fell short in 1999; we may safely assume that it was not motivated by Karl Rove or George Bush.
Second main point: suppose Rove’s testimony would be: "The President and I spoke about it, and he said, ‘Karl, I know the son of a bitch is guilty, but don’t we have more pressing matters for the US Attorney to work on?’ And I replied, “No, Mr. President, he’s an asshole, and he’s a Democrat, and he’s guilty on top of it all, so I say we let the dogs loose.’ And the President replied, ‘Well, Karl, you know best.’”
Now, that doesn’t establish anything legally improper – but it would be very embarrassing to have to reveal it. That’s what the executive privilege is designed to protect.
Their position is that they have a legal right to ignore the order. You disagree, but that doesn’t imply that the justice system is a big joke to them.
Absolutely. Let’s find out.
That’s the Dostoevsky version of Wind in the Willows.
aren’t you presuming their position? afaik, Rove hasn’t made a position known
I agree absolutely. If only the Congress would let even a single article of impeachment come into effect, executive privilege would be inoperable and we might actually find out the truth.
Well, that certainly sounds right! Or does it?
TG, IANAL, but it seems to be a bit…stretched. The seams are straining, like ten pounds of horseshit in a five pound bag. Are we really to believe that an administration has the right to plot to subvert the political processes to ensure themselves tenure and power?
These questions about bending the Justice Dept to serve one political view and one political party? Don’t they strike at the very heart of our governance? No, we haven’t gone to the point of having a political police, a Republican NKVD, the Party does not yet find us.
But do we dare permit even baby steps in that direction? Knowing, as we do, the awesome corruptive power of…power? Now, if a thorough investigation reveals that no such attempt was made, or even contemplated…well, happy day, no? Cause for celebration, to be sure. But even what little we know now brings a stench of corruption, or has the Federalist Society been recognized as the proper vetting ground, and conservative viewpoints been established as the only correct and proper stance. And dissident scoundrels such as myself and my ilk have no right to question our moral superiors?
Are these men so delicate that they dare not offer candor, for fear of …what? Being held accountable for their honest opinions should they be proven wrong? Well, then, let them take up a more suitable employment, let them chase ambulances and beggar widows and orphans, work less putrid and revolting. The halls of power never lack for recruits, who ever shies away from the opportunity?
And why are we obliged to let them keep their poor judgment private and secure? They’re quick enough to crow when they are right. And even if I were to accept that such a right to freedom from embarrassment exists (the textual basis being, well, obscure…), surely that doesn’t extend to subverting the very heart of our system?
What? Its not a crime, not given the strictest possible parsing of statute. Well, all right then, I forego any thought of legal punishment, not even the mildest Club Fed (though I hear the tennis courts are a disgrace, and a decent white sauce nowhere to be found…)
All I demand is the truth. Who did what, when. I can figure out the why pretty much for myself.
IMHO, I think the executive privilege is extraordinarily important to the function of the government. Unfortunately, it seems to come into play in rather unseemly borderline abusive situations, tainting its perceived benefit.
In this case, if one accepts the premise that the testimony revolves around illegal practices within the purview of Congressional oversight, then it falls outside the spirit and intent of the doctrine. Given the stakes involved (the bounds of the privilege, not the alleged shenanigans), it may have the unfortunate consequence of unduly expanding or contracting the doctrine.
Bricker, while your analogy to the Fifth Amendment is very helpful, I daresay it is not perfectly aligned (then again, what analogy is?). Although also imperfect, I’d like to suggest drawing an analogy between executive privilege and attorney-client privilege. Both are important, though the latter is generally thought of as much more sacrosanct (and well developed in case law). You of all people would be aware of my direction, but to spell it out: conversations with an attorney enjoy extraordinary protection, but that protection is not absolute. One can openly discuss a past crime with an attorney or discuss contractual negotiations and strategies at great length without fear of their exposure. However, discussion of one’s plans for future crimes would not be protected.
Take two possible areas of Rove’s involvement: the decision to invade Iraq and the politicization of the Justice Department. The former strikes me as much more in line with the privilege, despite any dark fancies about nefarious motivations and machinations to deceive the public. The latter, however, would stand outside the scope of the privilege. As above, this assumes that the essence of the conversation dealt with circumscribing the law.
Some questions:
This is not a criminal prosecution. How does this affect Nixon’s application?
Nixon focused on in camera review by the Judicial branch. How will it apply to the Congressional branch? Will/should open hearings as opposed to in camera review make a difference?
If it does make it to the Supreme Court, would Scalia find a privilege? Given the above (non-criminal, different branch), he has ample room to find that the privilege does not exist without directly circumventing case law. It seems that one of the politically expedient litmus tests for right-leaning judges would suggest that they would deny or severely limit the privilege.
Does (will?) the privilege extend past Bush’s term in office? Assuming for a moment that the privilege would protect Rove today, can a successor president keep the privilege alive? If the privilege does not require the president’s invocation, can Rove continue to exert it after Bush leaves office?
“Well developed in case law.” You ain’t kidding – the biggest problem we face in this discussion is the paucity of cases to guide the duscussion.
I agree. I think any testimony that constituted a crime would pierce the privilege.
Er… yes. I’m hesitant only because I’m not prepared to agree that “politicization of the Justice Department” is a crime in and of itself. Every President appoints every US Attorney; I am confident that no President has boldly declared that he will make his appointments without any regard to the political affiliations of the would-be appointees.
But with that qualification – which you seem to be on board with, given the last sentence I quote above – then I agree.
It strengthens the privilege discussed in Nixon, since Nixon makes clear that the due process concerns of a criminal trial trigger an especially high counter-interest.
In my view, this is a key difference. Since the privilege exists to permit candid communication with the President possible, in camera disclosure is far less damaging to that principle.
Not “right-leaning” judges. Textualist judges, however, should be less inclined to find expansions of the privilege.
I should point out, though, that it’s unworkable to insist upon strict textualist readings when you disagree with the end result sought and broad, “living constitution” readings when you are in favor of the end result sought.
In my view, the only workable solution is to say that the privilege belongs to the President, not the man. (Er… the person). A successor President can waive or reaffirm the privilege.
I thought it was apparent that you and I both know what the law is and that it can be changed only through amendment to the Constitution. Once you have stated the holding in the relevant precedent, can we not have a discussion about what you and I think the law should be?
I should think it was clear that I was stating my opinion: The president and his advisors should not be shielded from embarrassment related to their functions in public office. When it comes right down to it, the whole concept of executive privilege is related to protecting the powerful from the consequences of exercising their power. It’s a kind of noblesse oblige that has no place in democratic society.
The notion that the president would be denied critical policy options because of the fear of such exposure is something that seems to worry a lot of people, but I think, frankly, that it’s a bullshit concern. If you want to hold a position of power, anything you say with regard to exercise of that power should be open to public scrutiny.