It looks like Secretary of State Condoleezza Rice apparently will refuse to comply with the subpoena requiring her to testify before Congress. That is awesome for its sheer ballsiness. This woman must have cojones like coconuts. Forget about Putin — is Bush going to seek a third term? Let the build up to war with Sweden begin!
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“…not inclined to comply with the order.” Well isn’t that nice. I wasn’t aware that subpoenas are voluntary.
That’s what’s so brilliant about it. I’m kinda hoping that I’ll be subpoenaed soon, so that I can say that I’m “not inclined to comply,” citing the Rice Precedent, which is basically summed up as: “no, fuck you.”
Aren’t there some separation of powers issues here? Or maybe some executive privilege claims? I realize Clinton greatly weakened the executive with all of his phony-baloney executive privilege claims which were struck down time and again by various courts, but there’s gotta be something left.
Absolutely. An essential part of the separation of powers is that the congress can subpoena members of the executive branch. This is one of those “checks and balances” described in the Constitution. The executive branch can no more ignore a subpoena from congress than congress can decide to let the executive branch make laws.
Here’s my take on it:
There are separation of powers issues, there will be a court case, and the executive branch will be in the wrong. However, the point is to draw it out so that Rice doesn’t testify until very, very late in the Bush presidency, or perhaps until after it, when there will be less political motivation to continue.
It’s not about being right. It’s about timing.
And honestly, I’m quite happy this will go to court. I hope it’s dealt with faster than the Bush administration is hoping, and I hope it sets a precedent that shows that “executive privilege” doesn’t mean “not accountable.”
You and Sec. Rice have different interpretations…
“But she added that her White House work was covered by the constitutional principle of executive privilege, a principle presidents have in the past used to shelter aides from being forced to testify under oath in Congress.”
“There is a separation of powers, and advisers to the president are, under that constitutional principle, not generally required to go and testify in Congress,” she said.
Were that so, that would mean that nobody that works in the White House (the head o’ the executive branch) would ever be accountable to congress. That’s precisely the opposite of the how the balance of powers works.
Nixon went through this during Watergate. He claimed executive privilege — the audio tapes that he’d made were made by him, for him, and he couldn’t be compelled to give them up. The court called bullshit, and pried them out of his hands. The SCOTUS wrote:
That was the same logic used when the courts rightly denied President Clinton’s claim of executive privilege in the matter of Ken Starr’s subpoenas. For a flashback, see this June 1998 CNN article on the topic.
No doubt in this instance and all future instances, we’ll see the White House claiming “national security,” using the same logic that’s placed half of the damned government under the DHS umbrella.
I guess I kinda agree with you and Ben about the procedure to come, but I wonder if it’ll ever go to court if Rice steadfastly refuses to honor the subpoena. Is it really worth it to the Dems in the Senate to go through all that for Rice’s testimony? I doubt it. It’s old news.
Then again, someone pretty smart on the majority staff had to think this through and consider the strong possibility that Rice would refuse to show up. Maybe they will try to compel her, or maybe the whole thing’s just a foofaraw.
A few thoughts on executive privilege (and I’m sorry that I can’t supply citations where I am now…)
1. Executive privilege is a doctrine that is not found in the Constitution. It is said to be inferred from the structure of the Constitution. Just like the right of privacy. If you claim to be a “strict constructionist” on the right of privacy (it doesn’t exist because it’s not found in the Constitution), then you should also argue that the doctrine of executive privilege doesn’t exist. But in fact both do, because the Supreme Court occasionally has to balance conflicting interests and powers. Some folks might regard that as “judicial activism,” though that’s another topic for another day. :)
2. If the ostensible purpose is to allow the President to receive unvarnished advice from people who will speak the truth to him without fear of having that advice get into court, then executive privilege applies most clearly to communications directly with the President. It applies somewhat more tenuously to communications with those who speak directly with the President. It does not apply at all to people who do not communicate directly with the President.
3. Executive privilege does not apply to Cabinet officials and executive departments — only to senior White House staff.
4. As the Supreme Court said in US v. Nixon in 1974, whatever interest the Executive may have in maintaining the confidentiality of his advice must yield in the face of allegations of criminal wrongdoing. The Court did not address an interesting little side question — suppose it it the Congress rather than a criminal court that is seeking to expose criminal wrongdoing. My guess is that the courts would say that Congressional oversight is a legitimate governmental function, and that that function is worthy of being furthered. I don’t know of any opinion that deals with just how much it may be furthered by ruling the executive privilege inapplicable.
5. Condoleeza Rice has a reasonable claim of privilege as to things that she discussed with the President when she was National Security Adviser. She has very little claim of privilege as it applies to things that she discussed with him as Secretary of State.
6. If someone wants to assert the privilege, they have to go up and assert it question by question. For example, if the Judiciary Committee wants to talk to Karl Rove about his role in firing the US Attorneys, he would have to go up and take the oath and say, “I’m Karl Rove. I discussed firing the U.S. Attorneys with Monica Goodling, and here’s what we said. (Not privileged) And then I talked with the President, and I’m not going to tell you what either he or I said. (Privileged) And then I told Monica, ‘Give them the axe.’ (Not privileged)” He can’t just say, “You might ask me some questions on which I could assert the privilege, so I’m not even going up there.”
I have some vague recollection of Rice or Rove or someone basically saying that exactly this is what would happen if subpoenas start getting handed out. Even if I’m getting my facts mixed up, this can’t come as a surprise to anyone.
I’m not enough of a political speculator (despite technically being a “beltway insider”) to say what the long-term plan is with this, politically, but even if it takes years after Bush is out of office, I’m really, really hoping that we get a ruling that strongly limits the extent of executive privilege, especially when it comes to answering to congress.
Having whatever comes of the testimony seems to me, a bonus.
So if the Executive branch will not enforce the “contempt” charges
Congress could “Call forth the militia” to enforce the law!
Found in article I
provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;