Wednesday, January 28, 2009
Rep. John Conyers, Chair of the House Judiciary Committee, issued a subpoena last week to Karl Rove requiring him to testify before the Committee in its investigation of the Bush administration's politicization of the Justice Department, including the firing of nine U.S. attorneys. The subpoena is here; Politico has an excellent report here; I previously posted on last Congress's Senate Judiciary Committee subpoenas and contempt resolutions here, the House's contempt case against Bolton and Meiers for failing to testify (asserting executive privilege) here, and more generally about post-presidency claims of executive privilege here.
The difference with this new subpoena, of course, is that Bush has now left office, and Rove was an official in a prior (not current) administration. The difference weakens any claim of executive privilege.
Executive privilege for former officials is governed by Nixon v. Administrator of General Services, the case in which former President Nixon sought to protect his presidential materials from screening by the Archivist. The Court ruled in that case that while executive privilege outlasts a presidency--and therefore may be asserted by a former President--the screening process in that particular case had sufficient protections to ensure executive confidentiality and thus to override Nixon's claim of executive privilege.
The Court arrived at this conclusion in part because neither President Ford nor President Carter supported the claim. Jack Balkin, in a thoughtful and balanced post at Balkinization, argues that this puts the onus on President Obama: If Obama supports the claim, Rove is more likely to win in court; if Obama opposes it, Rove is more likely to lose.
But there's more to the Court's analysis in Nixon v. Administrator than subsequent Presidents' sanctions of the claim. In addition to--and perhaps even more than--subsequent Presidents' views, the Court looked at processes in place to protect executive confidentiality. The Court in Nixon v. Administrator, for example, compared the processes in place in that case to the in camera processes in United States v. Nixon and concluded that the processes in the former were as protective as those in the latter. Moreover, they were minimally intrusive.
And the Court in Nixon v. Administrator also made much of the fact that Nixon's claim was against his own branch of government--the executive--not a coordinate branch, as in U.S. v. Nixon.
With these other considerations, any executive privilege claim against the most recent subpoena could be an interesting constitutional question. The protections in a Congressional investigation are probably less than in an Archivist's screening (as in Nixon v. Administrator) or a federal court's in camera review (as in U.S. v. Nixon), and the subpoena is probably more intrusive. Moreover the subpoena comes from a coordinate branch. But on the other side, the subpoenaed material goes to support a Congressional investigation, not a criminal trial (as in U.S. v. Nixon).
Obama's position on Rove's assertion of executive privilege will certainly matter--it may even be the tipping factor--but only along with these other considerations. And if Obama's recent practices promoting open government are any indication, he's likely to oppose Rove's claim of executive privilege in any event.