I don’t see this analogy as being applicable. The Fifth Amendment covers every citizen so anyone can invoke it in their defense. But Executive Privilege is quite narrow - it only exists around the office of the Presidency.
Consider the case of a President who wants one of his advisors to testify about conversations they had. Are you arguing the advisor can refuse the President’s direction by invoking Executive Privilege? I doubt that is your intent. Executive Privilege is a one-way street- it only exists to the extent that the President invokes it.
Bricker, all of your arguments so far have addressed the need to protect presidential advisers from discussing advice they gave the president. You have made some good points.
However, as I understand it, congress may want to ask him questions about actions he took himself, not necessarily consultations he had with the president. For example, they may want to ask him if he personally made any phone calls to US prosecutors encouraging them to prosecute democrats. This would not fall under the umbrella of “advice” he gave to the president. The president may not have been involved in the phone calls in any way. Surely the right to be free to give advice does not extend to any action you take while working for the president, does it? Nobody would argue that Rove could rob a bank and then assert executive privilege to avoid going to trial, would they? So there is obviously a line drawn somewhere where “I was giving private advice to the president” no longer applies.
Note: as far as I know, Rove has never robbed a bank.
Maybe a better analogy is taking the 5th in the civil context. There, I believe, you have to at least show up, listen to the questions, and respond to/assert the privilege on each one.
Exactly. Rove can’t simply refuse to testify all together on the basis that some of the questions might be protected by executive. If I am called to testify in front of Congress, or at a trial, I can’t simply refuse to show on the basis of the 5th amendment. I have to show, evaluate each question as it’s asked, and then invoke my rights under the 5th amendment. There’s no logical reason it should be any different for executive privilege.
It seems to me that there are two different questions:
Is Rove clearly committing a crime by not testifying? Bricker, your posts address this question very well.
Is Rove acting unethically by not testifying? Bricker, your posts have nothing to do with this question.
I believe that someone may act legally but unethically; furthermore, someone who finds grey areas in the law and uses them to act unethically may be described as treating the justice system like a joke–especially if they are doing so as part of an effort to slow the workings of the system, to prevent the system from functioning as it is designed to function.
Whether Rove is doing so is not a question for the courts. It is not a question that may be answered by precedent or reference to statute. It is a question of philosophy and politics.
That does mean that there won’t be an objectively correct answer, at least not one available to us non-omniscient mortals. That doesn’t mean that it’s a question unworthy of discussion: it’s absolutely worthy of discussion, just like all questions of ethics. Except when those questions involve gluing your burning child into a car containing Hitler.
No, but it might trump it in some particular instances. The problem is, there have been few Supreme Court cases addressing executive privilege and its outer boundaries have never been clearly defined. But the frequency with which the Bush Admin has invoked it is noteworthy.
If Congress voted to hold Rove in contempt, that might go to the Supreme Court. The Bush Admin doesn’t what that – it has carefully avoided keeping its expanded claims of executive power from being tested in court wherever possible. OTOH, Congress might not want it either – the Scalito Court might rule in the Admin’s favor. And, whichever way it goes, it sets a precedent binding on the next Admin, and how any Beltway insider feels about that depends on a multitude of factors.
Things are seldom simple, and this is clearly not one that is.
Well, I’m a textualist at heart, so I’m uncomfortable with the whole concept of executive privilege in this context. It’s not clear to me that it’s existence is obvious from the text of the Constitution, and I think its judicial creation was in error.
What I find ironic is that it seems that the court “created” executive privilege almost inadvertently. It’s clear they wanted to slap the Nixon administration. I suspect, though, that they didn’t want it to seem that they were “going too far,” so with characteristic but undue deference to notions of executive power, they let it slip in with “Yeah, obviously, it’s important, but not in this case.”
I might be off on this, but my impression is that the judiciary has been rather cowardly about slapping down exercises of unenumerated powers by the executive. Even in Marbury, the court schemed to establish its authority without actually trying to curb the executive, right?
Isn’t there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn’t that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn’t that directly imply that the President knew about such goings-on?
And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn’t know anything about it.
No doubt that plays a large role, but that alone wouldn’t get so low. I think it’s more the stuff that both sides don’t like. The earmark problem, highlighted by the Alaskan Bridge to Nowhere, just gets puts people in the mindset that these guys are a bunch of fucking idiots. That or worse, corrupt scumbags who just scratch each other’s backs doing whatever is necessary to keep themselves in office. Then stunts like this and the one by The Shire’s Dennis Kucinich piss people off. They don’t work enough and when they do, we’d rather they didn’t.
I wonder if he can claim it on the grounds that to not claim it would be to admit to the content of his advice–i.e., that it didn’t exist–and that even going this far would be describing the nature of his advice to the president, and is therefore protected.
My first thought (and Wikipedia agrees with me) was along these lines: ever pick up a frog? Not in the “setting it in your hand” way, but by grabbing it behind its front legs and lifting. Notice how now you have a frog with its limbs all splayed out, legs dangling freely, fat belly protruding above?
Now, picture a prisoner being scooped up by officers on either side of him, such that his legs dangle freely and he can’t resist being moved forward. That’s a frogmarch.
Anyway. I’m no scholar of federal law or executive privilege, but my reading of the Nixon decision seems to indicate that the privilege, even when properly invoked (as does not appear to be the case here), can be overcome by demonstrating that the information sought is merely relevant to the investigation, which in this situation seems rather plain on its face. Congress isn’t seeking national security information or diplomatic secrets; it’s all about domestic hiring and firing issues and whether un-Constitutional considerations were used, and “the answers would be politically embarassing” just isn’t compelling enough to warrant secrecy in the face of a Congressional subpoena. Indeed, transparent government should be the rule in an enlightened democracy, to ensure accountability and an informed voting public.
Marty, Marty – you’re not thinking fourth-dimensionally.
[/Emmett Brown]
No.
Suppose Rove’s testimony was as follows: “I spoke to the President about the firing of U.S. Attorneys, and I told him, 'Sir, I’m hearing something things about firing these bozos because they aren’t politically reliable. Now, I already told you I want those guys to concentrate on voter fraud cases. If they won’t do that then as far as I’m concerned that’s not a matter of politically reliable, it’s that they won’t do their damn jobs. I don’t want anyone fired because we think they might not be politically on one side or the other, but I’ll be damned if I’ll have some SOB working as a US Attorney who won’t prosecute a federal crime because he thinks there are better ways to spend his time. You’re the decider, and you set the priorities for who those SOBs prosecute, and if they won’t take that direction, then fuck ‘em.’ And he said, ‘Karl, we’re gonna take some heat if this comes out,’ and I replied, ‘Sir, that’s what executive privilege is supposed to protect.’”
So that leaves us with the President aware only of an absolutely legal, and yet politically potentially embarrassing, course of action. Exactly what executive privilege is supposed to protect.
No offense meant, but… wow, does this sound like desperation from you. Pelosi says maybe, just possibly, not in the full House but just in the Judiciary Committee, we will have some attention potentially being paid to the subject of impeachment. Maybe.
And this, by you, is the right thing, eh? I guess if you’re starving, even scraps from the table look like gourmet food.