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 fromOffice, 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
Law.
[Art. 1, Sec. 3]
… nor shall any person be subject for the same offenseto be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself…
[5th Amendment]
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.”