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March 22, 2007

Executive Privilege in the Balance

I
n response to Congress's demand for sworn testimony from his White House advisers, the president has invoked executive privilege and threatened a court battle over any subpoenas to Karl Rove and Harriet Miers.

The president is invoking a species of executive privilege called the "presidential communications privilege." See In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). This privilege is just about the most hard-to-penetrate privilege known to mankind. But it's not impenetrable.

Once in court, to sustain a demand for information covered by the presidential communications privilege, a congressional committee must demonstrate that the information sought is “demonstrably critical to the responsible fulfillment of the Committee's functions.” Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). The Senate Select Committee case seems to suggest that a Senate committee's claim of need to fulfill its oversight function probably is not enough.

But that is not the case with the House Judiciary Committee. The reason is that the House of Representatives has the Constitutional authority to investigate matters of executive malfeasance for purposes of deciding whether impeachment of a federal executive official is appropriate. Art. I, Sec. 2, Cl. 5. The D.C. Circuit, in the Senate Select Committee case appeared to recognize this important constitutional authority in assessing a claim of executive privilege.

Bottom line. The Senate subpoenas for Rove and Mier's testimony have a good chance of being quashed. But the subpoenas from the House Judiciary Committee -- the House committee empowered to investigate executive malfeasance for impeachment purposes -- have a much better chance of being enforced . . . especially if the House counsel alleges possible malfeasance.

Posted by shertaugh at March 22, 2007 11:28 AM

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