Karl Rove's Executive Privilege May Vanish on January 20, 2009

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.

Comments

[tavote08]

So it begins as those chickens start coming home to roost!!!

[FogBelter]

Paul, I was against indicting or prosecuting Rove prior to Bush leaving office to prevent a pardon. The Siegelman case leaves Rove completely exposed to prosecution ... let's see how the dice roll come 121.

[MsLiz]

I am not a Richard Scrushy supporter, but I must point out that he was Siegelman's co-defendant and is still in prison. He has a karmic debt to pay, so I am not complaining.

[MissKaren]

They're called "chicken hawks."

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.

[ThinkCreeps]

An advance pardon must surely be interpreted as a complete admission of guilt and responsibility.
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.

[leeman79]

Shouldn't Karl have been in vietnam? Hmm...it's funny how there's this long list of republican leaders and operatives who always seem to support war, but never serve in one.

[MsLiz]

Wikipedia said Karl managed to avoid the draft by claiming he was a student, even though we was not enrolled full time. His lottery number was 84, so he would have been inducted if not for a deferment. Meanwhile, he was getting involved in Republican politics, which may be the explanation for this,quoting Wikipedia: " In December 1971 he was reclassified as 1-A. On April 27, 1972, he was reclassified as 1-H, or "not currently subject to processing for induction". The draft ended on June 30, 1973." WTF was 1-H?

It would have done Rove good to be in the military. PTSD would have improved him.

[davism97]

It makes me sleep better at night knowing we'll have a president intimately familiar (and respectful) of our Constitution. If President Obama can make decisions based on the facts while avoiding partisan passions he'll go down in history as our greatest president since Washington (who was our last non-partisan president).

[Sundialsvc4]

"I'm not a lawyer," but I am of the opinion that NOTHING in the Constitution supplies any sort of "exception to" a clause of the Constitution itself ... namely "Article II, Section 4."

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.

[Yermammy]

http://www.afterdowningstreet.org/
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.

[Artos]

It is hightime that those who have usurped power in this country in an effort to further a fascist type of government should be made to pay dearly and not just with a few months in light security prison. I think only time in Maximum Security prison among other hardened criminals will set an example to others who would corrupt our Country.

[Sundialsvc4]

"Man, I feel like a Plaintiff!"

[kellygrrrl]

oder up the Hoof-Cuffs

[Bmantra]

Having these evil creeps like Rove,and Cheney be tried for their crimes would really be icing on the cake. W however really is'nt necessarily evil, just really, really dumb

[kellygrrrl]

it's not just icing. It is imperative that we seek justice, lest this all happen again

[Yermammy]

Read Vincent Bugliosi's book " The Prosecution of George W. Bush for First Degree Murder" and then tell me he's not evil. Time to get serious. We got someone (Barack) with the spine to do this, so let's get it done.

[Yermammy]

I can't believe you with this low expectation baloney. President Bush and Vice President Cheney are guilty of provable crimes. Karl Rove is a slimy afterthought. Impeachment proceedings should be started forthwith and their pardoning powers revoked. There are 35 Articles of Impeachment that have been read into the House of Representative's Records & Archives. To ignore this is not only irresponsible, but smacks of cowardice. If everyone is going to ignore the grave crimes and travesties of the last eight years, how are we to see Justice and respect for the Constitution and the Rule of Law? This isn't going away, no matter how many people exclaim what beautiful clothes this King is wearing. This will set a dangerous precedent for ALL future presidents to abuse the unitary powers Bush & Cheney installed. If Barack even DREAMS of invoking Executive Privilege for these criminals, we will truly see what time it is. If no Republicans don't want to get on board, TOUGH. They will be judged complicit.

[left-leaning-libertarian]

We need to keep an especially close eye on the outgoing Bush administration; they still have a lot of power to abuse before January 20th, and you can bet that they're going to take advantage of it.

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.

[Yermammy]

I'm told this is the scenario to expect. Bush executes blanket pardons for all involved (guilty), including VP Richard "Dick" Cheney. Then, Bush will resign. President Cheney will then pardon Bush. Check and Mate.
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.

[AnotherMcIntosh]

"Bush will resign. President Cheney will then pardon Bush. Check and Mate."

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.

[Artos]

left-leaning-libertarian,

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.

[Yermammy]

The pardons go away once the proceedings START. Don't you understand the timing on this? You strike when the iron is hot.

[imodotcom]

Hope to see the following conversation between Karl Rove and President Obama on SNL: (PART 4 of 4)

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

[chascates]

On a related note, what is the precedence regarding Presidential pardons regarding crimes possibly committed by Rove, Libby or others? Can a pardon absolve a person from all criminal charges related to an event or action? How about civil charges? And has a pardon ever been given to a company or corporation? These 'little government' types twist the law around themselves like a beach towel and certainly have planned a painfree exit.

[imodotcom]

Hope to see the following conversation between Karl Rove and President Obama on SNL: (PART 1 of 3)

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)

[cruisepuppy7452a]

Don't let Obamma fool you. The man is going after Bush, Cheney, Rove, et all. The days of " I don't recall, or I can't remember, or I wasn't there" are over. Nor will they get the chance to claim executive privledge. That was involked under Nixon, to protect him or his cabinet from prosecution. Well, NO More. This is a whole new set of laws, people and men who won't take crap off of anyone. With Biden in there as VP, the man who makes the final vote, count on impeachment hearings and federal prosecution. This president is a lawyer, he won't play footsie with anyone. This is why Bush wants to pardon himself and Cheney, Rove before he goes. He knows what is coming and wants to try to invoke executive privledge before he can be charged. Too late, cat's out of the bag. I think Obamma can actually legally reverse a pardon if I am not mistaken. I dont' think that pardon will stick. Any legal eagles know about this that can answer that one?

[Artos]

cruisepuppy7452a,

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.