an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Congressman John Conyers' recent subpoenato Karl Rove raises the interesting (and unsettled) question whether former Presidents can successfully invoke executive privilege to prevent their former aides from testifying before Congress or in civil or criminal proceedings. Put differently, does executive privilege remain with a president even after he leaves office, and can he use it to insulate inquiries into his conduct or those of his aides? In Nixon v. Administrator of General Services, the Supreme Court held that former Presidents still have some remaining rights of executive privilege. Nevertheless, this privilege is not as great as that of a sitting President, and, moreover, it is also affected by the needs and views of the sitting President. (In Nixon v. GSA, the court rejected Nixon's claim to protect his papers in part because neither Presidents Ford nor Carter objected).
Thus, if the sitting President does not support the claim of executive privilege, the claim is greatly reduced in strength, because, as the Supreme Court noted, "it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly." The Court's reasoning is that the incumbent President recognizes that someday his aides may be called to testify after he leaves office.
How does this apply to the current controversy? Much will depend on whether President Obama supports Karl Rove's invocation of the privilege. If Obama does not, then Rove will certainly go to court to invoke the privilege anyway, but it is more likely than not that Rove will ultimately lose on the merits. True, this case involves a Congressional committee rather than a criminal proceeding, as occurred in U.S. v. Nixon case, or, as in Nixon v. GSA, a request for archives. Even so, given the fact that the privilege would be substantially weaker if Obama does not support it, Rove would probably not prevail.
Nevertheless, Rove would have incentives to litigate the issue as long as possible, and that process could take years. When the President's own aides are called to testify, the issue is usually resolved fairly quickly through negotiation. In this case, however, Rove and Bush have no incentives to negotiate. They are out of office and there is little that Congress can offer them without Obama's assent. They will try to delay as long as possible and hope that the courts will ultimately support them.
On the other hand if Obama supports the invocation of the privilege, then Rove is in a much stronger position, and Congress will have to negotiate with Obama to strike a deal for Rove's testimony. If Obama refuses to budge, then Rove is protected, more or less to the same extent that he would have been protected under Bush. (Or perhaps a little less because he is a former aide to a former president. The degree of that protection, it should be noted, has not yet been determined by the courts. Rove might still lose, but his case is stronger when the incumbent President supports the invocation of the privilege). On the other hand, if Obama and Congress reach a deal, Rove will still object and he will still go to court. But, as before, he will probably lose in the long run.
Why might President Obama support the invocation of the privilege for Bush's aides? One reason is that he doesn't want his own aides to be investigated after he leaves office. Although he has no control over what future presidents will do, his decision might set a precedent that future presidents will follow. A second reason is that he may believe that Bush's aides will reveal things that might be embarrassing to current executive branch employees.
Whatever his decision, the ball is now in Obama's court. And whatever he decides, Rove will still go to court to defend the privilege, whether Obama supports it or not. As a result, we can expect that Rove will not have to testify for some time, perhaps not for years. Posted
by JB [link]