House Judiciary Committee Subpoenas Karl Rove

Yesterday, the House Judiciary Committee subpoenaed former Bush advisor Karl Rove, with the goal of forcing Rove to testify about potential meddling in Department of Justice investigations. I'm sure I speak for everyone when I say that it's about damn time. Democrats won both houses in Congress in 2006, and it's taken them nearly eighteen months to use their constitutional power to compel testimony. Eighteen months! When I voted in 2006, I figured that we'd see the House and Senate subpoena a lot of high-level administration figures. I was disappointed.

The big, meaty legal question that will come from this deals with the scope of the President's (and not just Bush, but all Presidents) executive privilege and the extent to which he may prevent his advisors from testifying. The fascinating thing about this area of law is that it's very murky. There is no explicit constitutional basis for the privilege, but it may be culled from the separation of powers doctrine, so that the President may withhold information from Congress where giving up the information would impair his ability to perform his executive duties. For example, early on, President Washington withheld documents from the House of Representatives relating to a treaty he'd negotiated, but gave the documents to the Senate. Washington reasoned that since the President is the "sole organ" responsible for U.S. foreign policy, he could withhold information, but chose to give documents to the Senate because it has a constitutional role in approving treaties.

Bush claims a much broader privilege. His assertion of privilege is based upon the notion that in order to secure frank advice from his advisors, and therefore to be able to perform his duties in an informed manner, the advisors' opinions must be insulated from wide dissemination. It's clear that there is no blanket privilege, meaning Bush will need to articulate exactly how Rove's advice, as related to the alleged politicization of the DOJ, is related to Bush's ability to carry out his constitutional duties as President. As I said, this one is murky, and I'm betting this one will be in the courts very, very soon.

Personally, as a lawyer interested in legal ethics, I wonder what will happen with the U.S. Attorneys who allegedly used their offices for Republican political gain. The allegations here are serious, and include selective prosecution. If I remember my legal ethics course correctly, a prosecutor's first duty is to do justice. They aren't merely there to rack up government wins or go head-hunting; they are truly public servants who must walk a thin line between zealously prosecuting criminals, protecting society, and ensuring that those accused of crimes get a fair trial. Prosecutors have duties to defendants that defense attorneys do not owe prosecutors. If these allegations turn out to be true, there will be some seriously disgrace lawyers looking for a new line of work.

Probably end up as "legal advisors" on Fox News.