Friday, August 03, 2007

Karl Rove's Immunity

Dan Froomkin wrote in WaPo No one actually expected Rove to show up. But Fielding's assertion of executive privilege yesterday to block his testimony was nevertheless surprising in its breadth.... In support of his position, Fielding attached a letter from principal deputy attorney general Steven G. Bradbury, who bases his argument for Rove's immunity on a Nixon-era memo by then-assistant attorney general William H. Rehnquist. Rehnquist wrote in 1971.... The Clinton Justice Department cited the same Rehnquist memo in 1999 when then-White House counsel Beth Nolan was subpoenaed by a House committee investigating President Clinton's grant of clemency to 16 members of a Puerto Rican terrorist group.
Vlinton freeing terrorists? A trival matter, if he wanted their support for a political matter.
But as Nolan herself testified on the Hill this spring: "Recognizing the absence of judicial precedent for this position, however, the Attorney General appropriately also considered the balance of executive and legislative interests in the particular matter to conclude that my testimony was protected from congressional compulsion under the particular circumstances of that request. I subsequently testified before that same committee with respect to other pardons, after the President waived any privileges he might have asserted with respect to such testimony, just as he had done on prior occasions."
So Clinton did not say there was no Executive Privilige, he just agreen to waive it in this case.
Nolan explained: "We have little case law illuminating the contours of executive privilege, but what we do have makes one thing absolutely clear: the President's constitutional authority to assert executive privilege is not absolute, but is instead to be balanced against the legitimate needs of the coordinate branches of government in undertaking their constitutionally assigned responsibilities.
And is one of those duties fishing when the president has clear constitutional powers to do something (fire the lawyers), and when Clinton fired all of them, so he could put his own in?
The seminal Supreme Court case on executive privilege is, of course, United States v. Nixon, [a 1974 decision] in which the Court held that a privilege is a qualified one that may be outweighed by countervailing needs."
And that case involved cover up of a crime. If it is a crime for the President to fire a handful of lawyers, why is it not a crime to fire all of them?

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