Legal question. If Karl Rove goes on TV to discuss the Siegelman case, does he lose any legal privilege to not discuss the case before a Congressional committee?

Update: Attorney bmaz writes, "Generally no. The 5th Amendment privilege is against compelled self incrimination. Now if he made statements against interest or the statements on Fox (I assume that is what you are referring to) were of some other particular evidentiary value, they would almost surely be admissible through an extrinsic source at a trial or evidentiary hearing or, in your question, a congressional hearing. But not through Rove unless he chose to repeat the statement. He cannot be compelled to do so, nor to give any other testimony for that matter. There are all kinds of technical exceptions and permutations thereon, but for your general question, this is the general answer."

But he couldn't claim executive privilege as a reason not to testify as he has in the past - but the right not to incriminate himself only?

Update II: A former Congressional attorney writes:

When thinking about “legal privileges” before a congressional committee, you have to keep in mind the nature of the proceedings and the fact that once a witness asserts a privilege (no matter what its validity), the burden is on the committee to initiate a very long and cumbersome process to hold the witness in contempt. Moreover, enforcement of congressional contempt (except in the case of inherent contempt, which we can disregard for purposes of this discussion) is ultimately in the hands of the executive branch.

With regard to the possibility of Rove asserting the 5th Amendment before a congressional committee, I think “Attorney bmaz” is correct as to the general rules applying to waiver of the privilege. There are circumstances under which the privilege is waived when a witness chooses to testify before a particular tribunal (eg, a witness cannot arbitrarily invoke the privilege as to some questions but not others on the same subject matter) but those circumstances are fairly narrowly construed. I doubt that talking to the news media would be a waiver of the privilege under any circumstances.

Even if there were an arguable waiver, the chances of a congressional committee attempting to overrule the assertion of the 5th amendment privilege are virtually nil. For example, during the congressional investigations of Enron and other corporate scandals a few years ago, there were instances of corporate executives coming in and basically reading statements to the effect that they hadn’t done anything wrong, but based on the advice of their counsel, they would be asserting their 5th amendment privilege to not answer questions. There was at least a reasonable argument that some of these executives had waived the privilege by making exculpatory statements on the same subjects that the committees wanted to question them about, but as a practical matter the committees were not going to initiate the contempt process just to test this legal question.

As for the question of executive privilege, there the privilege belongs to the President, not to the witness. I am sure that the executive branch would take the position that whatever Rove chooses to say to the media or anyone else, he cannot waive the President’s right to assert the privilege. Whether this is correct as a legal matter or not, the Justice Department is not going to prosecute Rove should he invoke executive privilege before a congressional committee on the President’s instructions, just as it is not going to prosecute Miers or Bolten.

So back to changing the laundry. No one in the administration can be held accountable under most circumstances short of a solar eclipse with Mars passing Jupiter, etc. etc.

Posted by Laura at February 26, 2008 12:52 AM