The Constitution breathes nary a word about Executive Privilege. Nonetheless, it has been invoked by Presidents since Washington to prevent or limit disclosure to Congress of internal documents and testimony. The rationale for such a privilege has been stated in various ways, but all invoke the need of the Executive for unfettered conversations and analyses that, if subject to disclosure, might be stated too carefully and thus deprive the Executive of a robust discussion of facts and opinions that is needed for the best decisionmaking.
There are very few Court cases dealing with Executive Privilege, because Congress has usually not elected to trigger a confrontation, and the Executive has often negotiated terms of compliance "voluntarily" so that the actions could not be treated as precedent defining the limits of the Privilege in subsequent cases.
Executive Privilege was finally tested in Watergate, United States v Nixon. The Supreme Court recognized the existence of the privilege (where were the strict constructionists then?), but also determined that the privilege is not absolute and can be overcome.
The outlines of the Privilege, however, have never been determined with any clarity. It is generally asserted that the Privilege has to be invoked by the President (it is, after all, the Executive that is claiming the protection) and that its scope may be limited to actual meetings/conversations/memos to the President himself, although there is language in the few Court cases speaking more generally about "high government officials".
Come January 20, 2009, high noon, Karl Rove will be in an interesting position.
He has refused to testify before Congress about the firings of the US Attorneys, although it is not clear whether it is he or President Bush who claimed Executive Privilege. It would be difficult to believe that a Court would allow anyone other than the President to claim the Privilege, as it is not a personal right, but, as described above, an extrapolation of the Article II powers of the Office.
The disastrous Bush Presidency has left the United States with a host of problems, and diminished resources with which to handle them. One area in which it did substantial damage was to the Constitution itself. Thus, while the economy, energy, education and a redirection of foreign policy are all very pressing matters, the new Congress cannot ignore restoring the integrity of the Constitution.
Some time after January 20, 2009, therefore, the new Congress will issue new subpoenas for the testimony of Rove concerning the firing of the US Attorneys. George W Bush will no longer be President, and thus no longer embody the Executive to claim the Privilege.
In what may be the most delicious of ironies, it is George W Bush himself who provides the only precedent for determining where the power lay for invoking Executive Privilege for acts committed in another President's Administration. It was President Bush, not ex-President Clinton, not ex-Attorney General Janet Reno, who invoked Executive Privilege to deny disclosure of sought details of Clinton's Attorney General Janet Reno, the scandal involving FBI misuse of organized-crime informants, and Justice Department deliberations about Clinton's fundraising tactics.
It will, therefore, be up to President Obama to determine whether Executive Privilege ought to be invoked for Karl Rove. In addition to being the first Afro-American elected President of the United States, Barack Obama will also be the first Constitutional scholar to occupy the Oval Office, a situation dripping with more irony as the Republicans tried to brand him as un-American and the Constitution itself, when written, counted him as only 3/5th of a man.
It is not Barack Obama's style, nor is it proper, for such a weighty matter to be determined by partisan considerations. Thus, I would expect President Obama's White House Counsel to gather the facts, and for the President to make a dispassionate decision on whether Executive Privilege should be invoked.
In order for President Obama to decide whether to invoke the Privilege for Rove, his Justice Department will have to be told all the facts. Did Rove speak to the President about the Attorney firings or not? Did he speak to the Vice-President? What was his involvement in the entire sordid affair? If Rove does not reveal any of these facts, Obama can certainly not invoke the Privilege based upon nothing.
My guess is that President Obama would not invoke the Privilege to prevent Rove's testimony, regardless of the above facts, because it involves acts or statements that are not the proper purview of the White House. For justice to be accepted, the public must indeed know that it is fair, and President Obama would not want to reinforce the notion that specific cases were allowable matters of discussion within the White House or directives to the Justice Department.
Rove may also be compelled to testify about other matters such as the vendetta against former Governor Donald Siegelman who spent jail time on what appear to be trumped up charges, about his role in the Valerie Plame matter and his practice of using non-Government email addresses to conduct business, just to name a few.
Rove may attempt to stall by invoking Executive Privilege himself. His argument would have to be that he, himself, relied upon the confidentiality of the conversations. He would also have to indicate that he did, or did not, talk to the President about these specific issues.
But, it should not matter. Executive Privilege belongs to the Office, and the assertion of "personal harm" is not germane. As with Bush and Janet Reno, the President at any given time determines what is considered harmful to the Office, and the President will be Barack Obama.
Nor will Rove's inevitable pardons rescue him. Indeed, they may facilitate getting his testimony since he will not be able to assert 5th Amendment rights.
The pardon will not protect him against subsequent acts of contempt of Congress or perjury.
Paradoxically, the man who did as much as anyone except Dick Cheney to upset the balance among the branches by arrogating unlimited power to the President may be responsible for establishing greater constraints on Executive Privilege.
If Bush pardons Rove, it will be great because then he will have to testify if he's hauled in front of a committee. If he doesn't testify honestly, he can be prosecuted for perjury. If he refuses, he can be jailed up to a year for contempt of Congress. You can be sure that Obama's AG will not pull a Mukasy and refuse to enforce the will of Congress.
While that may hold water in the US, I doubt that the The Hague would be very impressed, should Le Rove travel to Europe and be subject to state or citizen's arrest.
It would have done Rove good to be in the military. PTSD would have improved him.
This clause, the Impeachment Clause, expressly states that "crimes and misdemeanors" on the part of "any civil officer," not just the two top-dogs, are not permitted. They are punishable, and it's not an option. They "SHALL BE" punished. Period.
For the last eight years, we have been forced to watch as high crime ran amok ... and was protected, aided and abetted by a cadre of "any civil officers." It even inflicted financial ruin on ... Iceland! And now they expect to coast right on out, into a full and honorable retirement, having looted the Country not only of quadrillions of dollars, but its moral standing throughout the world.
I don't call that "executive privilege." I call it a Felony.
This is the place to find out how you can help pursue justice for this criminal regime.
We can wait on Nancy Pelosi, but I won't live until 120.
We can hope President Barack Obama will see this through, but we got him the job in the first place.
We can do this, but it's going to take ACTIVISM.
As Franklin Delano Roosevelt once said "I like the proposal, now MAKE ME DO IT".
Only us, the REAL Patriots can get this done. I urge to you to consider.
I predict that Bush will pardon Scooter Libby and write pre-emptive pardons for Chenney, Rove, Meirs, Gonzales, Rumsfeld and others, probably around Christmas.
The only consolation is that Bush does not have the power to pardon himself.
We can also hope that some foreign government--Spain, Germany?--may indict these creeps for their crimes against humanity. The problem then will be how to get them to face justice. At the very least, just like Henry Kissinger, they won't be able to travel outside the US anymore for fear of arrest.
This can NOT happen. Starting the Impeachment proceedings NOW will revoke pardoning powers, regardless of the outcome of the Hearings. By then they will be out of office and let the REAL party begin.
Scooter Libby is the one to watch. He knows where ALL the bodies are buried. Mark my words.
He said in a moment of weakness (before his jail time was amnestied)- "I'm not going to go down for this". And he did not.
Possibly.
Another approach is that
(1) Bush will pardon Cheney,
(2) Cheney will resign,
(3) Bush will resign,
(4) Pelosi, as Speaker of the House, will assend to the Presidency and pardon Bush,
(5) Obama will take office and ask: "Can't we all get along?,"
(6) then there will be those that Obama is just moving to the center and that all of us should be tired of the same old politics, and
(7) Cheney, Bush, Pelosi, Lieberman, et al, will be smirking.
the only reason why Bush would be prompted to issue pardons is if the Democratic Congress decided to press the issue before he left office. If he did it in advance without anyone having made any attempt at pushing the issue it would be a declaration of guilt. Only someone feeling that they were guilty of something would try to obstruct justice with a preventative first strike like a pardon. The Democrats should just bide their time and wait, it's only a couple of more months. Well worth it to achieve justice. In the meantime Rove, Cheney and Bush can sweat a little.
Rove: "Oh, almost forgot. ...a previous White House occupant did not like the name Hussein.."
Obama, alarmed, left the room.
Rahm: "OK, here is the deal. This is the only deal. Don't try to shop this deal. If I were you, I would go incognito right-away, especially among Republicans. You give us all the things you got. And shut down your website - give me control of the domain, OK. Next, stop speaking engagements. Stop writing columns. Stop taking calls. Disappear. Go somewhere where we can't reach you quickly."
Rove, looking troubled: "But where do I go? Everyone hates me. All I did was try to help the Republicans stay in power forever."
Rahm: "Look, let me help you. How about the Kremlin? They need your specialty, you see?! You can help Putin become President again. Heck, you could be his Chief of Staff! You will be revered!!!"
Rove: "You are brilliant! I wish Steve Schmidt was half as smart. Thanks! I will call you from the Kremlin soon."
Rahm: "See you LATER."
- imodotcom
Rove, trying to make small talk: "Hello Barrrack, how do you like your new place?!"
Obama: "Karl, please make it quick. What's on your mind?"
Rove, smirking: "Well...hee hee..you have the power to bring down the biggies...hehe."
Obama is taken aback.
Rahm, quick on his feet: "You got some dirt on W and his boss?!!"
Rove, suddenly excited: "Some dirt? Heck, a truck full of smelly dirt...thats what I got man!"
Rahm: "Tell us what you got."
Rove, clearly reveleing at the thought: "Remember those Emails that the RNC deleted? I got all the Emails before the delete!! I got every version!! "
Rahm, disappointed: "Thats it?"
Rove: "No Sir,.....I got tape recordings of who told me to find a way to get rid of all those Lame Attorneys. The White House was very proud of the firings. We had a party - by invitation only of course. I got a raise too!!"
- imodotcom
(see parts 2 and 3 below)
If Bush did pardon them it shouldn't stick, because how can one Criminal pardon another. If he did pardon them in advance, it would indicate to America that their was an admission of guilt. To pardon them would be to say I need to make sure that threats of punishment could not be leveled at them in order to get them to have to confess. Without that threat hanging over their heads there would be no incentive that would force them to cooperate. He would know that. But to do so in advance would definitely be a sign of guilt. We would all be aware of that. After that I would suggest to Bush that he go live with his uncle in Saudi Arabia.