Executive Privilege Today, Executive Privilege Tomorrow, Executive Privilege Forever

Damon W. Root | January 30, 2009

Newsweek's Michael Isikoff reports that just a few days before leaving the White House, President George W. Bush sent a very interesting letter to former aide Karl Rove:

On Jan. 16, 2009, then White House Counsel Fred Fielding sent a letter (.pdf) to Rove's lawyer, Robert Luskin. The message: should his client receive any future subpoenas, Rove "should not appear before Congress" or turn over any documents relating to his time in the White House. The letter told Rove that President Bush was continuing to assert executive privilege over any testimony by Rove—even after he leaves office.

Here's Yale law professor Jack Balkin's response:

The fact that Bush sent these letters while he was still president makes no difference. He is no longer president. The claim of absolute immunity he is making (as opposed to executive privilege, which is not absolute) would be controversial even if offered by a sitting president, but it is even more so when offered by a former president.

Radley Balko explains why Barack Obama should swear off executive privilege here.

Comments

|1.30.09 @ 6:43PM|#

Hey, you know that'd be a great way for lame duck President to make a few bucks--sell pardons before the fact!

It'd be the same thing, wouldn't it? If his executive privilege lasts forever, so long as it's asserted while he's in office, then maybe his ability to pardon people does too...

He could sell indulgences like he was an old school pope or something!

|1.30.09 @ 6:45PM|#

I believe the letter to Rove actually instructed him to:

"not appear before Congress or turn over any documents relating to his time in the White House even if they crushed his testicles"

I, for one, am hoping he holds out, and then delivers a testimony in falsetto.

ktc2|1.30.09 @ 6:52PM|#

LOL.

Bush et al are such scum. He manages makes Nixon look like Mother Theresa.

|1.30.09 @ 7:15PM|#

Karl Rove, Ken Starr and actor George Dzundza. Separated at birth?

ktc2|1.30.09 @ 7:18PM|#

So if Rove follows this advice does that mean we'll eventually see him in cuffs for contempt of congress? Wouldn't that be sweet!

Elemenope|1.30.09 @ 7:22PM|#

So if Rove follows this advice does that mean we'll eventually see him in cuffs for contempt of congress? Wouldn't that be sweet!

If Congress's civil contempt powers weren't something of a bad joke, then yeah.

|1.30.09 @ 7:28PM|#

Help me out, here.. Where does the constitution grant the executive immunity from congressional or judiciary subpoena? Oh, I remember. It doesn't.

-jcr

Elemenope|1.30.09 @ 7:34PM|#

Where does the constitution grant the executive immunity from congressional or judiciary subpoena? Oh, I remember. It doesn't.

Where does the Constitution grant Congress the subpoena power?

Oh, I remember. It doesn't.

Fluffy|1.30.09 @ 7:49PM|#

Bush's advice to Rove is actually comical, now that Bush doesn't have the FBI, the CIA, and a 7-figure armed forces to back that shit up.

Without that behind them the Bushies will cry like babies if the fucking girl scouts send them a subpoena. Rove will testify or he will go to jail. I'll cool with either outcome.

Paul|1.30.09 @ 11:46PM|#

Devil's advocate:

Taking executive privilege at face value...

Your consultations with your psychiatrist are privileged. If your psychiatrist quits or retires, are your conversations still privileged?

Comparable? Wrong analogy?

Naga Sadow|1.31.09 @ 12:28PM|#

Paul,

You have a point. But this seems . . . new . . . unprecedented. I'm really not even sure how I should look at this in any context.

|1.31.09 @ 12:56PM|#

Remember all those times between November and last Tuesday when Barack Obama said, "There is only one president at a time?"

I never cease to be amazed by the strategic foresight that he, or at least his team, demonstrates.

|1.31.09 @ 1:00PM|#

Paul,

Doctor/patient confidentiality protects the patient, not the doctor. The patient can talk all he wants, and the doctor has no protection.

So the relevant question would be, if you die, can the doctor talk about your records and sessions? The answer has been established as yes. A psychiatrist (or was it a lawyer?) recently came forward and said that a client of his had confessed to a crime for which an other man was serving time. The doctor (or was it a lawyer?) kept the confidence until his client died, then came forward.

the innominate one|1.31.09 @ 2:49PM|#

Elemenope | January 30, 2009, 7:34pm | #

"Where does the constitution grant the executive immunity from congressional or judiciary subpoena? Oh, I remember. It doesn't."

Where does the Constitution grant Congress the subpoena power?

Oh, I remember. It doesn't.

Section 8. The Congress shall have power to...constitute tribunals inferior to the Supreme Court;

Michael Ejercito|2.1.09 @ 3:05PM|#

Section 8. The Congress shall have power to...constitute tribunals inferior to the Supreme Court;

But that would not allow Congress to declare itself a court.

lumpy|2.2.09 @ 1:07AM|#

Joe,
No, the lawyer client privilege continues after death. See, for example: http://www.nacdl.org/MEDIA/pr000122.htm
The client himself would have to indicate prior to his death that the privilege would be waived after his own death.