Read a Pacific Northwest, liberal perspective on world, national, and local politics. From majestic Redmond, Washington - the Northwest Progressive Institute Advocate.

Friday, January 30, 2009

Friends in (Formerly) High Places

You may have heard recently that former President George W. Bush’s former White House Counsel sent a letter to Karl Rove (via Rove’s attorney) telling Rove not to testify before or produce documents to a congressional subcommittee investigating possible malfeasance by the Bush Administration. The letter claimed Executive Privilege, stated that Rove had total immunity, and therefore could not testify before Congress.

To say that the former President was stretching the concepts of privilege and immunity beyond the breaking point is a colossal understatement. One can only hope that Congress brings contempt proceedings against Rove rather than buckle to the former President.

The Concept of Privilege

The Executive Privilege asserted by the former President (and thank goodness the word “former” is in there) is analogous to the so-called marital privilege in the criminal arena. By looking at the marital privilege, we can see how ludicrous the claim of Executive Privilege is.

There are really parts to the marital privilege. The first is a criminal defendant’s right to preclude his/her spouse from being called as a prosecution witness in a criminal trial. That privilege exists only during the existence of the marriage. In other words, if a criminal defendant divorces his/her spouse prior to trial, the privilege disappears.

Let’s play make-believe by assuming that there is an Executive Privilege of the sort claimed by the Bush Administration. That privilege disappeared at noon on January 20, 2009. The only person who can assert Executive Privilege at this point is named Barack Obama.

The second part of the marital privilege is that it applies only to “marital communications”. A conversation between husband and wife that is related to the marriage is privileged and may not be admitted into evidence without the consent of both spouses. But there are circumstances under which the privilege does not apply. For example, a conversation between spouses while a third party is present negates the privilege. If the conversation relates to criminal activity, the privilege disappears.

If anyone who was not on a “need-to-know” status witnessed any communication between Rove and the Administration, or had access to any documents claimed as privileged, the privilege would disappear. And if the conversations or documents relate to potentially illegal activity, the privilege would also disappear.

Since the only way to know if who was present during a conversation, or who had access to documents, is to call Rove as a witness, Congress should be able to call him. But if he has a privilege, then how can he be forced to testify? By granting Rove and others immunity, as President Bush claims he has done, he has also eliminated any claim of privilege.

The Concept of Immunity

Immunity in the legal sense means that a person cannot be held liable for any wrongs that are covered by the immunity. In the criminal arena, a person who is granted full immunity cannot be prosecuted for the crime in question, and therefore may be forced to testify even if the testimony would otherwise violate the privilege against self-incrimination. Thus, prosecutors conducting grand jury inquiries may decide to force a witness to testify by granting that witness immunity.

If Rove has full immunity, as claimed by the former President, then any privilege would, and should, disappear. Rove, or anyone else covered by such immunity, could be forced to testify before Congress.

The Concept of Catch-22

Congress is trying to find out whether there were any illegal activities conducted by the Bush Administration, whether known or unknown to the President. If a President could simply claim privilege and grant immunity to all possible witnesses, then nobody could uncover anything illegal. It would be like putting the wolf in charge of the henhouse. Such logic might make for entertaining reading, such as that penned by Joseph Heller in Catch-22, but it makes for a non-transparent government and a dangerous precedent.


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