12/11/2008 05:12 am ET | Updated May 25, 2011

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.