House Panel OKs Subpoenas for Rove and Miers

The one thing these day that both the Democrats and republicans seem to be able to agree on, is that the administration and particularly Attorney general Gonzalez, did a poor job of handing the firings of eight federal prosecutors. Bill Clinton fired all 93 federal prosecutors when he came to office, and there is no doubt that president Bush was well within his rights to fire the eight prosecutors in question. “I’ve told the attorney general that I think this has been mishandled, that by giving inaccurate information … at the outset, it’s caused a real firestorm, and he better get the facts out fast,” said Sen. John Cornyn, R-Texas. The House Judiciary subcommittee, without dissent, decided to subpoena the president’s top aides to testify publicly and under oath about their roles in the firing of the prosecutors. By issuing the subpoenas the committee was rejecting the President’s offer that his aides could to talk privately to the Judiciary Committees, but not under oath and not on the record. Chuck Schumer, D-N.Y. who is leading the Senate probe into the firings, dismissed the White House offer.“It’s sort of giving us the opportunity to talk to them, but not giving us the opportunity to get to the bottom of what really happened here,” Schumer said. “There must be accountability,” added subcommittee Chairwoman Linda Sanchez, D-Calif.Arlen Specter, R-Pa., argued that “It is more important to get the information promptly than to have months or years of litigation”“Testimony should be on the record and under oath. That’s the formula for true accountability,” said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee.When asked would he fight Democrats in court to protect his aides against congressional subpoenas?”Absolutely,” Bush declared.Calling the investigation “ A Politically motivated fishing expedition.” By fighting the subpoenas the administration is asserting “Executive Privilege” in preventing their appearance under oath. It is impossible for me to hear that term without flashing back to the Nixon administration. It is my recollection that the strategy did not work well for Nixon. Not trusting my memory I did a Google search and confirmed my recollection.In an article By MICHAEL C. DORF he writes the followingThe Constitution nowhere expressly mentions executive privilege. The Supreme Court considered this argument in the 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Nixon requiring that he produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon’s Administration. Nixon resisted on grounds of executive privilege.The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.”Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. Accordingly, the Court ordered President Nixon to divulge the tapes and records. Two weeks after the Court’s decision, Nixon complied with the order. Four days after that, he resigned. Let’s not forget that the accusations in this case are trivial in comparison to the Nixon case, and there is no way President Bush is going to, or should resign over this case. However there are a lot of Democrats that would love to get some “Quality time” with Carl Rove under oath, and are likely to just walk away from the opportunity. So look for a fight.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.