I recommend reading both parties reasoning as well: Here is Congress's stand on it. Here is where the Rove party stands.
Both are pretty well expressed and easy/quick reads.
I think I'm going to have to side with Congress on this one. It would be a harder if Rove actually had the President saying "Executive Privilege!", but as it is, while he's got a reasonably strong theoretical argument, there's nothing real to back it up.
But of course, the reason I'm posting it is to hear what you smarter, wiser individuals have to say. Posts: 2827 | Registered: Jul 2005
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My main problem with the whole thing is that there's no real mechanism for testing either theory before contempt charges are filed. In almost every judicial case I can think of - grand jury, civil discovery, etc. - there is a way to move to quash subpoenas. In such a motion, the subpoenaed person asserts his privilege and a judge rules on it. Appeals are sometimes possible. Contempt doesn't factor in until the opportunity to seek to quash has passed.
Here, we've got Congress asserting a constitutionally implied power and Rove asserting a constitutionally implied privilege. There are reasonable arguments to be made on both sides. I'd like to see this resolved in court, outside the context of contempt proceedings.
Posts: 26071 | Registered: Oct 2003
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How many examples are there out there of the Bush Administration actively cooperating with a Congressional investigation of the Executive branch?
I agree with Dag, in that I'd like to see this resolved in the court. This past year has turned into a real tug of war over Executive privilege versus Congressional oversight authority. Personally I side with Congress, regardless of the party in charge, because I think it's one of their biggest responsibilities and one of the best ways to keep the Executive in check, even if they sometimes run amok with stupid pointless investigations. Either way I'd like this one settled once and for all.
Dagonee -
What is the specific part of the Constitution that deals with Executive privilege?
Posts: 21898 | Registered: Nov 2004
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quote:What is the specific part of the Constitution that deals with Executive privilege?
In U.S. v. Nixon, the Court said "The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." The Court also said, "Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based."
The Nixon case establishes a presumption that certain communications are privileged, and examines one particular exception to that privilege - the context of criminal prosecution. There is no case law directly on point to the Rove dispute.
It should be noted that there is a similar privilege for judicial deliberations.
It seems pretty clear that the privilege is not as broad as Rove asserts in his letter. However, this does not mean that the privilege is inapplicable here.
Edit: the issue is currently before the courts outside the posture of a contempt proceeding. My objection in that regard is that contempt could have been filed before any possible judicial review.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by Dagonee: I'd like to see this resolved in court, outside the context of contempt proceedings.
And Lyrhawn expressed similar sentiments.
My understanding is that in various similar cases of executive privilege/ congressional oversight of the executive branch in the post-Watergate era, both congress and it's committees and the office of the president have been reluctant to test their cases in court, for various reasons. Normally, they play a game of chicken, one party flinches, and they cut a deal at the last minute.
edit: Therefore, there's little modern judicial precedent.
The current Bush administrations have changed that somewhat, seeming to me to be more willing to refuse to deal. Then congress either backs down or goes to court.
Posts: 6316 | Registered: Jun 2003
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quote:Normally, they play a game of chicken, one party flinches, and they cut a deal at the last minute.
I'd say that's a very succinct and accurate description. I think the fear is that if they push it all the way, one side is going to lose BIG, and neither side really wants to take that risk. But Bush is in the last couple months of his presidency, and Congress has an itchy trigger finger. I don't think anyone is going to back off this one. I think he'll run out the clock, but I don't think Congress will drop it.
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