Executive privilege may not block ex-Rove aide's testimony, say scholars
Michael Roston
Published: Tuesday July 10, 2007
Print This  Email This

Congressional investigators condemned the White House this week for attempting to block two subpoenaed former Bush administration officials from testifying in the probe into the firing of 8 US Attorneys. But some scholars interviewed by RAW STORY suggested that President Bush's assertion of 'Executive Privilege' may not fully obstruct former Bush officials like Sara Taylor and Harriet Miers from testifying.

"Where Bush has it all wrong is in the assertion that a claim of executive privilege can prevent former aides from talking about a subject generally," said Mark Rozell, a Professor at George Mason University's School of Public Policy.

Referring to former Karl Rove lieutenant Taylor, he added, "There is no reason that Taylor cannot testify, answer any questions that do not trench on presidential confidentiality, and then refuse to answer those questions that indeed would violate confidentiality. Certainly there are some areas that would be protected by executive privilege, even in the case of a former aide. But that is far different than prohibiting her from speaking at all."

In a letter written Saturday to Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, Taylor's attorney W. Neil Eggleston suggested that his client would like to testify, but could not.

"She recognizes the burden on any citizen to respect the Senate's processes and to be responsive to its subpoenas," he wrote. "Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee. She has participated in no wrongdoing. She will assert no personal privilege."

However, Eggleston stated that the President's assertion of 'executive privilege' would prevent Taylor from testifying.

Executive privilege is a controversial concept in American government. Rozell, in a 1999 Minnesota Law Review article, said that executive privilege is "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public," and added that it is "now a well-established constitutional power - one with a longstanding history in American government, going back to the George Washington administration."

But he also noted that it "is controversial in large part because it is never mentioned in the Constitution," and has been given a bad name since its abuse by President Richard Nixon in the Watergate era.

Rozell wasn't the only scholar to question the impact of 'executive privilege' on Congressional oversight.

In contrast with attorney-client privilege and doctor-patient privilege, the violation of which brings significant professional sanction, another scholar told RAW STORY that the enforcement of 'executive privilege' is less tangible.

"As for whether Ms. Taylor could be punished criminally or civilly by the Bush Administration, I'm not sure that they'd have much basis to do that, beyond possibly arguing that she's released classified information," said Heidi Kitrosser, an associate professor at the University of Minnesota Law School. "My guess is that the biggest threat for her is the implicit threat of being blackballed and harassed by the administration, as the administration has been known to do to many an inside whistleblower."

Taylor's attorney appeared to recognize that the personal impact of breaking Bush's desire for privilege is her primary concern.

"[S]he can attempt to work out an accommodation with the Senate, which will put her at odds with the President, a person whom she admires and for whom she has worked tirelessly for years," Eggleston wrote in the letter to Leahy.

But Kitrosser emphasized that violating 'executive privilege' should be less worrisome to Taylor than the possibility that she might be found in criminal contempt of Congress for refusing to comply with the Senate's subpoena.

"Taylor is at risk not only of retribution by the Bush Administration, but also punishment for disobeying a congressional subpoena," Kitrosser added. "There's a statutory basis for holding an official in criminal contempt for violating a congressional subpoena."

At the same time, another observer of White House-Congressional fights over executive privilege suggested there might be a positive benefit of Taylor clinging tightly to the President's writ.

"If the President invokes executive privilege to prevent Taylor's testimony, she should honor it so that his overbroad assertion of privilege can be challenged in court," said the Clinton White House veteran who asked to remain anonymous.

Taylor, Miers will both attend Senate, House hearings

Ultimately, the debate may be purely academic. Salon's Alex Koppelman reported that Taylor will appear before the Senate committee on Wednesday.

"[D]espite President Bush's invocation of executive privilege in regards to the testimony of former White House staffers Sara Taylor and Harriet Miers about the ongoing U.S. Attorneys scandal -- Taylor will still appear before the Senate Judiciary Committee on Wednesday," he wrote in a Monday afternoon post at the blog War Room.

And on Tuesday afternoon, the House Judiciary Committee confirmed that Harriet Miers would appear on Thursday.

"[F]ormer White House counsel Harriet Miers will attend Thursday's hearing concerning the US Attorney firings," the Committee said in a statement.

However, Reps. John Conyers (D-MI) and Linda Sanchez made clear that they would carefully consider any assertions of executive privilege.

"Ms. Miers may decline to produce documents or answer certain questions based upon your interpretation of letters you have received from the White House, and those claims will be considered at the hearing, but its of course incumbent on Ms. Miers to appear at the hearing pursuant to the subpoena," they wrote to her attorney in a Tuesday letter.