last night, and into this morning,
white house counsel fred f. fielding (and
DoJ principal deputy assistant attorney
general steven g. bradbury) suggested that
a memo written in february of 1971, by then-
assistant attorney general william rehnquist
[providing some -- but not complete -- ground
cover in the pentagon papers/watergate case]
was all the "precedent" karl rove needed to
defy a lawfully-issued subpoena, and simply
fail to appear before the senate judiciary
committee that issued it to him. the cutest
part of the argument is that then-AG janet reno
relied on this same memo in 1999, on behalf of
the clinton administration. . .
[but logically, of what releveance is that,
i might ask? -- i understand the politics of
it, but as i've repeatedly mentioned -- it is
not of any lawful force or effect in this,
an entirely separate dispute -- some three
and a half decades later. . . but i digress.]
however, when seen in context, even the four
corners of that old nixon-era memo (clearly,
as any lawyer will tell you, in no manner
a source of any actual law, by itself) stand
for a very different set of propositions than
those for which fielding and bradbury offered
it, last night. in fact -- in cases of alleged
wrong-doing by the executive, it seems rehnquist's
review of the history would suggest. . .
umm. . . no privilege.
ONE MORE FROM
KOS '07 -- of
sheldon snook & TL:
to establish this high-likelihood, let me
quote just a few paragraphs of a recent stanford
law review article, on a.a.g. (later chief justice)
william rehnquist -- and his view of executive
. . .Executive privilege was raised several times during Rehnquist’s tenure, including when the Senate sought to obtain from the executive the entirety of the Pentagon Papers, following their partial publication, and other documents relating to national security and foreign relations. As with Rehnquist’s advice concerning the scope of the Commander-in-Chief power, his advice concerning executive privilege displays his common law approach to constitutional adjudication where the constitutional text is underdetermined or silent. In the setting of executive privilege, the Constitution’s broad lines mention neither congressional authority to investigate or demand documents nor the executive’s concomitant ability to resist. Instead, the President’s authority to withhold documents against compulsory process by the legislative or judicial branches is merely implied by the separation of powers.
To trace this implied privilege’s contours, Rehnquist did not begin with abstract separation of powers first principles. He did not deduce when the President could withhold documents from Congress or the Courts by reference to a grand theory of what functions are encompassed in the executive and whether the executive is unitary. Instead, he looked to the history of interbranch tugs-of-war concerning privilege and the past practices acceded to by other branches. From these examples, he inductively arrived at rough groupings of constitutionally supported privilege. Thus, Rehnquist’s memoranda on privilege are chiefly historical documentations of prior instances of asserted privilege. Based on his survey of prior history, Rehnquist suggested the existence of privilege in the fields of foreign relations, military affairs, pending investigations, and intra-governmental discussions.
Interestingly, Rehnquist’s advice on executive privilege suggests that had he participated in the Nixon Tapes Case, he might have provided the ninth vote against Nixon. Historical precedent did not support the claim that a President could withhold documents merely because they would “make [him] look bad,” and “the claim of privilege for documents is not necessarily coextensive” with the President’s absolute personal immunity from subpoena. In fact, a President could be vulnerable to a subpoena duces tecum, as “furnishing . . . a document to a congressional committee involves little, if any, inconvenience to the Executive Branch or to the President and his advisers.” To be sure, Rehnquist’s advice was given in the context of interbranch disputes between Congress and the President. How he would have voted in an intrabranch dispute, such as the Nixon Tapes Case, is necessarily speculative. But without some kind of theory of a unitary executive or some historical precedent, it seems likely he would have cast his vote against Nixon. . .
-- bybee and samahon 58 stan. l. rev. 1735, 1747 to 1749 (2006).
so -- even if one is persuaded by the words of
the rehnquist memo [officially titled "Memorandum
from William H. Rehnquist, Assistant Attorney
General, Office of Legal Counsel, Re: Power of
Congressional Committee to Compel Appearance or
Testimony of White House Staff" (Feb. 5, 1971)],
one must also acknowlege that even young william
rehnquist would likely have voted AGAINST nixon,
had he not recused himself (over his personal
relationship with attorney general john mitchell,
who had been sued in his personal -- not official --
capacity, in this particular nixon-watergate-era case).
[remember, of course, that it was nixon
himself -- not his aides -- and then, it
involved his own then-merely aruable
(since-proven) wrong-doing -- factors even
less-in-favor of bush and cheney's claims,
than they were in favor of nixon's
claim of privilege and immunity. . .]
thus, were rehnquist here today, we might very
fairly assume he would suggest that whatever the
contours of the virtual island carved out by
the doctrines of executive privilege, and immunity,
on the contstitutional map of messrs. bush and
cheney, the potential testimony of karl rove,
harriet miers, scott jennings and sara taylor -- and
certainly the documents of each -- still float, at anchor,
perhpas, but well-off-shore from that island of privilege. . .
that is, they are not protected; they must be produced.
and, here endeth the lesson.
oh! -- BEER-thirty! -- yeah!