Earlier this week, the House Judiciary Committee issued a subpoena to Rove, ordering him to testify February 2 about the US Attorney firings, and the prosecution of ex Alabama governor Don Siegelman.
- TPM (continuing coverage on stuff more people should know)
There you go, looking to the past again. Now, one of my things is history, so I might be biased in this respect, but then again, it's also unavoidable. This can be repeated until it sticks. Political theorist Woodrow Wilson (egghead before being President) held that the "informing" function of Congress was perhaps if anything more important than its legislative function. Putting ranking the functions aside, congressional investigations of how our government works is clearly a very important issue. This includes subpoenas in which people promise to tell the truth and all that. Something not deemed important in the Republican Congress, where various witnesses were apparently on the honor system. Not that lying to Congress is legit (or legal) either way, something that some seem to ignore.
This is but one situation where "executive privilege" was used to hinder the process. This was and continues to be b.s. Such CYA moves* are understandable, but it doesn't make it less open to our derision, and bad governance to boot. The challenge here is useful in that it forces the Obama Administration to go on record. This is important as a matter of constitutional principle. The Supremes have determined that executive privilege (somewhat akin to attorney/client, to provide a rough comparison) survives "death" shall we say, that is, yeah, Bush can raise it even now. But, in the very same case, the SC noted that the opinion that it:
must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly
The case involved protecting presidential records, which is still relevant, given the lack of protection over this area by the last administration. This includes loads of lost emails as well as an excessive interpretation of the exceptions supplied by law and good practice. The ruling involved intra-executive dealings, Nixon opposing an executive agency assigned with the records, setting forth a position opposed by Ford and (then President) Carter. U.S. v. Nixon underlined that executive privilege is important but limited. There the balance was a criminal investigation and the role of the judiciary.
But, Art. I comes before Art. III, and when discussing the subject in the Cheney Energy Task Force case, the Supremes spoke of how the "court’s Article III authority" AND "Congress’ central Article I powers [c]ould be impaired." Thus, U.S. Nixon's words apply here too,** since the investigating function, especially when dealing with corruption of the Justice Department and other possible lawbreaking, with implications for policy and even impeachment invesigations. To wit:
In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
This has gone on way too long. We need to make it a fundamental matter that presidential advisors, particularly those with roles in possible wrongdoing, can be free from congressional questioning. This includes not trying to convince us that some secret meeting not under oath or without a record would do the job. Rove seems like some nifty political gotcha, but the same premise was used for Josh Bolten and Harriet Miers. And others. It is a principle that goes beyond any one person. Like waterboarding, even if only a few really bad people had to suffer it, the President is not beyond the law. And, there are three branches of government, not just one.
Thus, with the proper word alterations, the below citation from U.S. v. Nixon applies here too, "compulsory process" including congressional subpoenas here, the judicial process specifically at issue in the matter at hand. And, "the rules of evidence" would include not abusing the subpoena process. Executive privilege has its place, but also its limits:
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
The Administration is due to set forth its position in February, John Conyers agreeing to push back the deposition to accomodate that. Let's see if this will just serve as more delay.
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* As my first comment at the link suggests, we should attack the alleged "reasonableness" of such people, not letting them get away with trying to be above the fray, making their opponents the "dirty fucking hippies" of Atrios fame.
** The energy task force matter (see here) underlines the importance of independent groups as well. The Supremes held a civil lawsuit pushing for discovery of documents did not reach the level of judicial or congressional disputes with the executive department. But, the "Fourth Estate" is important too, be it the press or other groups. I use the term to loosely involve all possible First Amendment type movements here.
When the Senate Republicans came back to power in 2002, the Supremes avoided deciding a more troublesome issue -- blocking the GAO, a congressional body, who earlier sued Cheney. Lest we forget, the suit that did reach the SC here is also the matter that led to controversy when Scalia didn't recuse himself, the ultimate 7-2 ruling showing how important his involvement was. Quack quack indeed.