Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

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March 21, 2007

Congress Subpoenas Rove And Sets Up A Constitutional Showdown

by Doug Mataconis

The House Judiciary Committee issued subpoenas today for five top aides to President Bush in connection with the developing investigation into the firing of eight U.S. Attorneys:

A House panel today authorized the issuance of subpoenas for top White House and Justice Department aides as it investigates the firing of eight U.S. attorneys last year.

The House Judiciary Committee’s subcommittee on commercial and administrative law passed by voice vote a motion giving the committee chairman, Rep. John Conyers Jr. (D-Mich.), the power to issue subpoenas for five current and former officials, as well as for “unredacted documents” from the White House and Justice Department. Among the five are Karl Rove, the deputy White House chief of staff, and Harriet E. Miers, the former White House counsel.

In authorizing the subpoena power over the objections of Republican members, the subcommittee rejected an offer by President Bush yesterday to allow the officials to testify under strict conditions. The White House is demanding limits on the kinds of questions they would answer, opposes having them testify under oath and does not want their testimony to be recorded or transcribed.

Absent an agreement between the White House and Congress, this one act turns what I’ve got to admit is a confusing “scandal” over the firing of a few U.S. attorneys into a Constitutional showdown.  President Bush made clear yesterday that the White House would assert executive privilege as a bar to any effort to force Presidential aides to testify under oath.

And, quite honestly, they would have a pretty good argument in their favor if they did.

Presidents have claimed executive privilege, if not by name, since the time of the Jefferson Administration, but it’s most famous example is the U.S. v. Nixon case, where the Supreme Court ruled that President Nixon had to turn over the tapes of Oval Office conversations sought by the Watergate Special Prosecutor. At the same time, though, the Court did recognize that some form of privilege does exist:

The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

What executive privilege really is, though, is a result of the Seperation of Powers doctrine. As a the head of a co-equal branch of government, the argument goes, the President has the right to have confidential meetings with his advisors and not fear that those conversations will be divulged to Congress, or to a prosecutor, using their subpoena power. How far that privilege goes is the answer that Courts have wrestled with since the early 19th Century.

If nothing else, this exceedlingly confusing story could provide the nation with some clarity on this issue.

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9 Comments

  1. Like so many things “constitutional”, the imperial powers demanded by Bush are “implied”. I know of no specific provisions in the Constitution, Bill of Rightrs or other foundation documents that affords the Executive the power to lie or avoid truthful disclosure regarding its actions or intentions. In the case of national security, the disclosures can be sequestered.

    So yes – lets take this to Court.

    Comment by Mike King — March 21, 2007 @ 1:24 pm
  2. While the courts have held that some executive privilege exists, it is also fair to
    say that has not hesitated to make clear that the use of such power is not intended to shield criminal activity from disclosure.

    There already exists more then minimal evidence that at least some of the terminations were the result the executive branch exerting undue influence where criminal investigations were concerned within the justice department and that those were motivated by political motivations.

    To the extent that testimony could impact on national security alone, I am sure the President is within his rights to exert such privilege. No doubt this will be his argument. In reality, It may take a lot to persuade the courts of this based on what is already known.

    Comment by Michael — March 21, 2007 @ 1:36 pm
  3. Personally I wish all the political witch hunts on both sides would stop.

    Just another fine reason to be a Libertarian.

    Comment by Robbie — March 21, 2007 @ 1:37 pm
  4. Liberty-

    I’m puzzled why you find this situation confusing. Is it not clear that our democracy would be gravely threatened if the Justice Department’s prosecutions were guided by whether they would enhance the political stature of Mr. Bush et al?

    Paul Horgan

    Comment by Paul Horgan — March 21, 2007 @ 1:38 pm
  5. Paul,

    Originally, my instincts led to the same conclusion. I even posted something here last week explaining why I thought the firings were an important issue.

    But…..

    The fact of the matter remains that, under the law, all United States Attorney’s serve at the pleasure of the President. He can dismiss them at any time, for any reason. In these cases, it’s beginning to look like most of the prosecutors were dismissed for reasons related to cases that they were not pursuing that the Administration or Members of Congress thought were important. There’s no evidence of a cover-up of some wider crime.

    If that’s all their is, then it doesn’t seem like anything illegal was done.

    Congress may not like it, but they passed the law that gave the President this power.

    Comment by Doug Mataconis — March 21, 2007 @ 1:43 pm
  6. OTOH, the law you refer to was intended for the emergency situation of a terrorist attack that prevented a fully effective, legally warranted response from the government. The use to which it is being put today is parallel to the line item veto–in other words, it should work to enhance executive power at the expense of Congress’s. Avoiding the consent right of the Senate is at the heart of controversy here, more often than not.

    Comment by Peter — March 21, 2007 @ 2:47 pm
  7. Peter,

    Whatever Congress’s intent may have been, the letter of the law gives the President the authority to fire at will.

    It’s my understanding that Diane Feinstein has already proposed legislation that would amend this particular provision of the PATRIOT Act.

    That, I think, is the appropriate response to this situation, not a needless spring of Congressional hearings.

    Comment by Doug Mataconis — March 21, 2007 @ 2:49 pm
  8. Maybe there are no legal issues with the firings but the Attorney General said that were mistakes made. The President first stated when he was out of the country that mistakes were made. Were the mistakes concerning how the firings were done or how they were handled? There has been too much confusion and “chatter”. The President owes the American people an answer. I strongly believe the President serves at our pleasure and should act like it.

    Comment by Constantino — March 21, 2007 @ 3:57 pm
  9. Constantino,

    Anyone who visits here regularly can tell you that I’m no fan of the Bush Administration so for me to take their side on this one is, well, not entirely comfortable.

    Maybe mistakes were made, but if what was done was legal, then why does Congress need to investigate it ?

    This is a part of D.C. politics that I am frankly sick of, Congressional investigations, Senators grandstanding in front of the camera. It’s all nonsense, no matter which party does it.

    Comment by Doug Mataconis — March 21, 2007 @ 3:59 pm

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