Balkinization  

Tuesday, March 30, 2004

JB

Rice Will Testify in Public and Under Oath

Sunday:

Nothing would be better, from my point of view, than to be able to testify,” Rice told Ed Bradley of CBS’s “60 Minutes.” “I would really like to do that. But there is an important principle involved here: It is a long- standing principle that sitting national security advisers do not testify before the Congress.

Today:

Principle? What principle? Come on, this Administration doesn't boldly assert constitutional principles and then abandon them when the poll numbers start to drop. You must have us confused with another Administration.

Here's the official explanation:

White House legal counsel Alberto Gonzales has sent a letter to the commission stating that Rice is prepared to testify publicly as long as the administration receives assurances from the panel that this is not precedent setting, the official said.

That is, there is a principle, but we can violate it when it's convenient for us as long as everybody promises that nobody will use our inconsistency against us later when it becomes convenient to invoke the principle again.

Now that's the sort of constitutional principle I think everybody can get behind.

Frankly, despite these assurances (which apparently, the White House demands must be in writing), I don't see how Rice's testimony can *avoid* becoming a precedent. Much of the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice (as opposed to judicial precedents). Whatever the Administration says, people will remember that Rice testified and the circumstances under which she did so. Saying that this won't be a precedent is a little like the Supreme Court in Bush v. Gore saying that its decision was limited to the specific facts of that case. It's not the sort of statement that induces much confidence in the principled nature of the decision.

The White House handled this badly from the beginning. It would have been far better for the White House to have taken the position early on that it would allow a national security advisor to testify, but only under the most extreme or important circumstances. Avoiding a decline in poll numbers is not such a circumstance, while getting to the truth about one of the most important events in recent American history is. Under that line of reasoning, however, the Administration should have consented to Rice's testimony a long time ago. Now it looks as if the only reason why the Administration is acquiescing is a concern about the upcoming election, a concern which should be completely irrelevant (and inappropriate) from a constitutional standpoint. By stonewalling the way it has, the Administration has set a precedent, and of the wrong kind.



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