Rove, Siegelman, and executive privilege

If Rove can deny involvement in public, why can’t he do so under oath?
The House has arrest powers; it should use them.

The law of testimonial privileges is among the (many) areas of law of which I’m pig-ignorant. But I know that in general the holder of the privilege can forfeit that privilege by making elements of the otherwise privileged communication public, or allowing them to be made public. If I tell my lawyer something in private, neither of us can be required to recount that conversation to a third party. But if I say “I told my lawyer X, and he told me Y,” then the lawyer’s memory and notes of that conversation are no longer privileged. The same is true if I give her permission to say “Based on what my client told me, I told him that what he intended to do was legal.”

If Karl Rove can offer a non-denial denial about his role in the Siegelman prosecution to George Stephanopoulos, why can’t he be compelled to tell the whole story, under oath, to the House Judiciary Committee? (Note how absurd Rove’s position is: he claims that he did nothing, and that saying so under oath would interfere with the ability of the President to get frank advice from his staff.)

Rove is confident that the matter will remain tied up in court until after the election. I’m still hoping that the Congress in its wisdom will decide to use its own powers of arrest for contempt, and not rely on the other two branches to help it do its job. Of course, from his cell in the Capitol, Rove would have the right to petition for habeas corpus. But the same aversion to interfering in contests between the (other) two political branches that might keep the courts from ordering the Executive to enforce a Congressional subpoena would also argue against ordering the Congress to release a contumacious witness.

The facts of the Siegelman case are so outrageous &#8212 the theory under which he was convicted would send to prison every President who has ever appointed a fund-raiser to an Ambassadorship &#8212 that anything that draws attention to it can only help the Democrats. Once Rove ignores a subpoena and the Justice Department refuses to prosecute for contempt, the House should vote an arrest warrant and order the Sergeant-at-Arms to serve it.

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