Sunday, August 5, 2007

Karl Rove's Immunity By Dan Froomkin
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.

From Fielding's letter to Judiciary Committee Chairman Patrick Leahy: 'Based upon the advice of the Department of Justice, the President . . . has requested that I advise and inform you that Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity. Accordingly, Mr. Rove is not required to appear in response to the Judiciary Committee subpoena to testify about such matters, and he has been directed not to appear.'...

The Clinton Justice Department cited the same Rehnquist memo in 1999 when then-White House counsel Beth Nolan was subpoenaed by a House committee ...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."

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. 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."

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