Overplaying their hand

Executive privilege for Karl Rove’s “unofficial” email accounts? No way, no day. The White House is in an indefensible position, both legally and politically. Fred Fielding is bluffing. The Democrats should stand pat and call.

I think the White House has finally gone a bridge too far. White House Counsel Fred Fielding is now claiming that the emails Karl Rove and his colleagues sent from RNC and Bush Campaign domains &#8212 in a transparent attempt to avoid the Presidential Records Act and keep them permanently hidden from investigators &#8212 are nonetheless covered by executive privilege.

Yes, you read that right: emails sent from non-government-owned computers using non-government email addresses are nevertheless part of the President’s executive apparatus and may not be examined by Congress. This simply doesn’t pass the laugh test, as Rove’s conduct in deleting emails manually after Patrick Fitzgerald told the RNC to stop deleting them automatically doesn’t pass the smell test.

Fielding proposes to use the RNC-held emails as bargaining chips in the struggle over whether Rove and his accomplices will testify under oath. In the meantime, every day increases the risk that “erased” emails that could in fact be recovered from RNC hard drives will instead be written over and lost permanently.

There is every reason for the Congress to act to secure those computers immediately and protect the data on them. By the same token, it is urgent to get Rove and his colleagues on record under oath right now, before they know what will and won’t prove to be recoverable. Obviously, the Justice Department is not going to investigate this matter, and there is no longer a Special Prosecutor statute. That leaves only the Congress, “the grand inquest of the nation,” to uncover the facts.

The Congress has plenary power to compel both the production of both documents (including the hard drives those documents sit on) and the attendance of witnesses. It need not use the courts for that purpose. A majority vote of either house can order the Sergeant-at-Arms of that house (presumably using the Capitol Police as deputies if necessary) to enforce its subpoenas. [Query: can the Congress also issue search warrants?]

The Administration’s strategy is obvious: to run out the clock, as it did in stalling the Valerie Plame case past the 2004 elections. In this case, if Congress is content to issue subpoenas and then to ask the Justice Department to enforce those subpoenas by issuing citations for Contempt of Congress, it’s easy to imagine the question of “executive privilege” tying the matter up in court for months, and possible to imagine that the Supreme Court refusing to enforce the will of the Congress on the Executive Branch.

But if the Congress instead uses its own power to arrest recalcitrant witnesses and seize documents demanded but not produced under valid Congressional subpoenas, the situation is reversed. Not only is there no delay, but a judicial refusal to intervene leaves the victory in Congressional hands. If the Sergeant-at-Arms shows up at RNC headquarters with an order to take the servers, is the RNC going to physically resist? I don’t think so.

If Congress orders Karl Rove to appear, he fails to appear, and Congress issues a warrant for his arrest, his defiance of that warrant would make him, in effect, a fugitive from justice. Would the President order the Secret Service physically resist the lawful service of a Congressional warrant? In defense of a Watergate-like virtual “shredding” of the emails? I doubt it. It helps that Rove is ludicrously unpopular; Fox News has him at 18% favorable, 37% unfavorable.

So far, the Administration has mostly succeeded in keeping this story off the front pages. But the latest outrage is on the front pages of both Friday’s New York Times and Friday’s Washington Post, and the Gonzales testimony scheduled for next week will certainly dominate the news. The last thing the White House wants is even more fuss.

So it seems to me that Fielding is bluffing, and that Waxman, Leahy, Schumer, Conyers, and Martinez should stand pat and call. No more negotiations. Testimony now, documents now, or issue and enforce those subpoenas.

As an extra-special bonus, the order for the Sergeants-at-Arms to make arrests or seize documents needs to be voted by the full chamber. I don’t know whether the Senate rules allow that motion to be filibustered. But that means that all of the Republicans on the Hill would have to put themselves on record as supporting the cover-up or opposing it. Voting “Yes” would seriously threaten any Republican’s standing within the party, and put him or her at risk of wing-nut primary challenges. Voting “No,” for a Senator or Representative from a competitive state or district, might well mean defeat a year from November. Now there’s a “wedge issue,” if you like.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com