Mr. Rumsfeld's mythical privilege

The U.S. House of Representatives has subpoenaed the Pentagon for internal correspondence and documents related to the military's response to Hurricane Katrina. The Pentagon said Friday it will comply with the subpoena except, perhaps, in the case of correspondence from Defense Secretary Donald Rumsfeld.

Assistant Defense Secretary Paul McHale, the department's top official for homeland defense, said the decision to turn over Secretary Rumsfeld's e-mail is "subject to a continuing review of the communication for legitimate issues of legal privilege and confidentiality."

They can review all they like, they will not find a legitimate issue of legal privilege and confidentiality against a subpoena from the U.S. Congress.

In an indication that they may already know this, a spokesman for Paul McHale issued a clarification a few hours later, saying it was a hypothetical situation because Secretary Rumsfeld generally doesn't use e-mail.

One of the most pernicious myths put forward by this administration is the idea that the Constitution protects a president's right to receive frank advice in confidence from people who should not have to worry that what they say will be released to the public. Such a fear, the theory goes, inhibits honesty and causes advisers to censor themselves when they communicate with the White House, to the detriment of the interests of the people of the United States.

That's cute.

As long as we're on the subject of hypothetical situations, suppose an American administration was corrupt, and certain officials used their position to hand off lucrative government contracts to their friends and relatives in exchange for cash or favors or future jobs at extravagant salaries.

Suppose the Congress tried to exercise its constitutional power of oversight and began an investigation. Suppose it sent a subpoena to the departments in question and demanded to see documents.

Could the officials suspected of impropriety refuse to comply with the subpoena on the grounds that the inquiry compromises their ability to give the president the brutally frank advice we all know he craves?

Well, they could try. They could attempt to intimidate the always-up-for-reelection congressmen into backing down. They could accuse the lawmakers of grandstanding and harming national security and generally not understanding the gravity of the situation. That has worked in the past.

But if the Congress refuses to be intimidated, if the Congress hauls the administration in front of a judge, if at some point someone in Washington locates a copy of the U.S. Constitution, this is what they will read in Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Congress has the power under the Constitution to impeach any member of the president's Cabinet, and in order to carry out that power it has the power to investigate, to subpoena documents, and to compel testimony. It may investigate for any reason, not only on suspicion of a crime. The "President, Vice President and all civil Officers of the United States" may claim a Fifth Amendment right against self-incrimination, but that's not going to protect them from being removed from their jobs. Impeachment is a congressional power, not a judicial one, and the decision of the House and Senate is final.

And the president's right to receive confidential advice? You won't find it in the Constitution. Try the encyclopedia, under "unicorns."


Copyright 2005

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