Balkinization  

Friday, January 30, 2009

Executive Privilege When You are No Longer the Executive

JB

Michael Isikoff reports that days before President Bush left office he sent a letter to Karl Rove telling him that after Bush left office Rove was under no circumstances to testify before Congress or provide documents to Congress. Isikoff reports that a similar letter was also sent to Harriet Miers.

President Bush's view is that beyond ordinary executive privilege, Rove and other aides have an absolute immunity from testifying.

The fact that Bush sent these letters while he was still president makes no difference. He is no longer president. The claim of absolute immunity he is making (as opposed to executive privilege, which is not absolute) would be controversial even if offered by a sitting president, but it is even more so when offered by a former president.

As I noted previously, it is likely that everything turns on whether the new administration consents to the testimony; a former president's privilege is not absolute but must necessarily be limited by the needs of the present administration, which, the courts presume, will take into consideration the needs of former and future presidents. Even if the Obama administration consents to testimony, Rove and Miers likely won't take yes for an answer. They will try to litigate their position in the courts, meaning that Rove and Miers will not testify until the process runs its course. President Bush and his aides are playing for time.

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