CAN WHITE HOUSE ADVISERS BE MADE TO TESTIFY BEFORE CONGRESS?

I just read the Congressional Research Service's report of April 14, 2004 concerning Presidential Advisers' Testimony Before Congressional Committees. Here is my take:
Both Carter and Bush have raised the separation of powers arguments in refusing to allow one of their advisers to testify. However, Congress does have a constitutionally rooted right to access information it needs to fulfill its Article I legislative and oversight functions. McGrain v. Daugherty, 273 U.S. 135, 177, 181-82 (1927), Watkins v. United States, 354 178, 200 note 33 (1957).

Another reason raised by Presidents has been executive privilege, which Bush, as his predecessor Richard M. Nixon raised. While the Supreme Court has found that a constitutional basis for executive privilege, it is not absolute for the president's need for confidentiality must be balanced with need for materials for the other branch of government to fulfill its constitutional duty. United States v. Nixon, 418 U.S. 683, 708, (1974). The a case that did involve a senatorial subpoena , a court found that presumption that the public interest favor confidentiality in presidential communications can be defeated only by a strong showing of need by another institution of government. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974).

Executive privilege has two components. One is communications privilege and the other is deliberative process privilege. In my research at the Oregon DOJ, I found the state had very similar distinctions for government officials and agencies. The communications privilege is based on the constitutional separation of powers for it relates to direct decisionmaking by the President. The deliberative process privilege is based on common law and is applicable to decisionmaking of executive officials generally. In Re Sealed Case (Espy), 212 F.3d 729 (D.C. Cir. 1997). As neither of these privileges are absolute, court must balance the public interest involved and assess the need of the party seeking the information.

The likely outcome is that advisers, whose sole purpose is to is to advise the President, will not be forced to testify. This would include Karl Rove and likely Harriet Miers. Other officials who have operational duties such Albert Gonzales, can certainly be made to testify though not necessarily about their advisory duties. Now, here is the problem for the White House, Rove and Miers by interjecting themselves into the function of the Justice Department, so they should be compelled to testify as to their actions regarding the purge of the U.S. Attorneys. Not only that but apparently, they were using e-mail accounts at the Republican Party's headquarters. The use of those e-mail accounts clearly put them outside their advisory role to the President. Additionally, the use of those e-mail accounts for official White House Business violates the Presidential Records Act. According to the National Journal, about 95% of Karl Rove's email traffic has been on the Republican National Committee email accounts.


However, the courts, have historically been reluctant to involve themselves in separation of powers issues. (We will ignore the aberration of Bush v. Gore). Considering that and especially the current bench which is filled with Bush appointees it is a near certainty that the judicial branch will refuse to intervene. Impeachment may be the only effective remedy for the Senate to bring this administrations action to the light of day.