Responding to my suggestion that the House of Representatives start impeachment proceedings against Karl Rove as a way of forcing his testimony in the face of Bush’s assertion of “executive privilege,” a reader asks:
Wouldn’t that go against the right to not self-incriminate? In criminal trials, the defendant can’t be forced to testify.
That seems to be a compelling point. But let’s look at the texts:
Judgment in Cases of Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust or
Profit under the United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment, according to
[Art. 1, Sec. 3]
… nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself…
So an impeachment specifically isn’t a criminal trial. Otherwise a subsequent prosecution would be barred as double jeopardy.
Because he would be subject to prosecution later, Rove could still claim his Fifth Amendment privilege at a a hearing considering a Bill of Impeachment or at his trial before the Senate. It would be legitimate for Congress to draw the appropriate inference (as it would not be proper in a criminal trial). The public, too, would be free to draw inferences, which might deter Rove from making such a claim.
In any case. the Fifth Amendment is a testimonial privilege: it doesn’t shield anyone from having to provide documents under his control. That makes it much narrower than the supposed “executive privilege.”