Presidential adviser Karl Rove
Mike Wintroath  /  AP
Presidential adviser Karl Rove is the center of a battle looming between Congress and the president over executive privilege.
By Tom Curry National affairs writer
msnbc.com
updated 3/30/2007 2:36:54 PM ET 2007-03-30T18:36:54

Democrats in Congress want to question President Bush’s aides including strategist Karl Rove, former White House counsel Harriet Miers, and deputy counsel William Kelley about the firing of eight U.S. attorneys.

Last week the Senate Judiciary Committee voted to give its chairman the power to issue subpoenas to Rove, Miers, and Kelley, as the House Judiciary Committee had already done.

Bush has said he will oppose any attempts to subpoena White House officials and has promised to fight them in court. He may invoke the doctrine of executive privilege.

But Senate Judiciary Committee chairman Sen. Patrick Leahy said Friday, "I'm in no hurry" to issue the subpoenas to Rove and the others, so a court clash does not appear to be imminent.

Here’s a guide to the battle that might be ahead:

Q. What is “executive privilege”? One can’t find that phrase anywhere in the Constitution.

A. Executive privilege is the tradition of presidents dating back to George Washington of refusing to appear before, or keeping presidential documents from, committees of Congress and the courts.

In its ruling in the 1974 Nixon tapes case, the Supreme Court recognized “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”

The court added that executive privilege was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

But it also ruled that executive privilege is not absolute; if a president had evidence needed in a criminal prosecution he had to turn it over to the prosecutor and to defense attorneys.

Q. Is it standard procedure for the House or Senate to subpoena members of the president’s staff to force them to testify?

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A. No, it isn’t. In the past, White House aides such as Patrick Buchanan in the Nixon administration and George Stephanopoulos in the Clinton administration have agreed to testify without being subpoenaed. Sometimes White House strategists make the judgment it would be more costly politically to refuse to testify than to testify. 

Q. Does the current battle resemble the 1974 case in which President Nixon tried to keep evidence from the Watergate special prosecutor?

A. It is similar in that it entails a potential clash between two branches of government.

But it is different in that the Nixon case involved evidence which was needed in the prosecution of former attorney general John Mitchell and six others. In the current controversy, there is no criminal charge involved.

Another difference is that in the Mitchell case, the Supreme Court ordered the trial judge to examine the evidence in his chambers to decide what could safely be made public. It ordered him to “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.”

But in the battle over Rove, Miers, and Kelley, the Democrats on the House and Senate Judiciary Committees want them to testify in public.

Q. Has there been a previous Supreme Court or appeals court ruling involving a president’s political aide who had been subpoenaed?

A. Louis Fisher, an expert on congressional and presidential powers at the Library of Congress, said, “I believe the Rove case would be unprecedented, with regard to being White House staff, but the courts have supported broad subpoena powers for Congress to fulfill its constitutional duties, and I would think the ‘privilege’ raised by Rove would be unlikely to overcome the core congressional power,” that is the power of Congress to investigate executive branch operations and allegations to wrongdoing in the firing of the United States attorneys.

Q. Do the Democrats have legal precedents on their side to get a court to enforce a subpoena against presidential aides?

A. It is not clear whether they do. Even the most zealous member of the Democratic majority on the Judiciary Committee, Sen. Charles Schumer of New York, said last week, “the law is somewhat muddled on this. It is not very clear because not many cases have reached the courts…. It’s one of the least settled areas of the law.”

Q. In what jeopardy are Rove and others if they do not comply with the subpoena?

A. A person who refuses to testify risks being cited for contempt of Congress, a misdemeanor punishable by a fine of up to $100,000 or up a year in prison.

If the Senate or the House voted to cite Rove or another aide for contempt, the matter would be referred to the United States attorney for the District of Columbia, Jeffrey Taylor, for prosecution in federal district court in Washington D.C.

But it is possible that Bush could order Taylor to not proceed with the criminal referral and that might end the matter there.

Q. How has the Supreme Court handled executive privilege cases in recent years?

A. In its 2004 decision in a case involving the Sierra Club’s attempt to get documents from Vice President Cheney’s energy task force, the Supreme Court said the document pursuit was too intrusive on executive branch operations.

Writing for the majority, Justice Anthony Kennedy emphasized “the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

Q. Why are the courts likely to try to avoid getting involved in this dispute?

A. Justice Kennedy and the majority in the Cheney case in 2004 signaled that the court seeks to avoid these cases because they entangle the judiciary in political battles between the president and Congress.

“Once executive privilege is asserted, coequal branches of the Government are set on a collision course,” Kennedy wrote.

“The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances.”

Q. Do the president and Congress have an incentive to avoid a court battle?

A. Yes, according to Washington attorney Raymond Shepherd, the former chief counsel of the Senate's Permanent Subcommittee on Investigations.

A court battle could lead either to a Supreme Court ruling that greatly strengthened executive privilege so as to impair the power of Congress to oversee executive branch agencies, or to a ruling that so weakened executive privilege it that this president and future presidents would suffer.

“The stakes are so high that I really don’t think it is going to go to court,” said Shepherd. “Everybody seems to think that the two sides are so stubborn that they are going to force court action. I just don’t buy it. I think the stakes are too high. They’ll find some kind of compromise.”

Q. Will the battle continue until Bush has finished his presidency in January 2009?

A. That depends on whether the president and Congress choose to fight out in the courts, how quickly a court hears the case, and the length of the appeals.

But the likelihood of a protracted battle is one argument Republican senators are using to try to persuade Democrats that subpoenas are futile.

“If we have the confrontation (in court) we’re not going to get this information (about the firing of the federal prosecutors) for a very long time,” said ranking Judiciary Committee Republican Sen. Arlen Specter. He cited a 1995 executive privilege case that wasn’t resolved until 1997.

Specter brushed off the threat of the Senate issuing subpoenas to Rove and others.

“The subpoenas do not have any meaning in a context where it will take two years to enforce them,” he said. “This matter will be before the next president, who may be a Democrat and he will open the files wide probably.”

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