Last night MSNBC is reported that, according to a senior White House official, Richard Clarke's testimony on the 9/11 "terrorist attacks was considered so damaging that national security adviser Condoleezza Rice planned to ask the panel for a private interview to answer his allegations."
Again, the request is for a private interview. But if you read down into the piece it seems the hang-up may be that Rice or the White House don't want the testimony to be under oath.
The article says that "panel has consistently required anyone rebutting sworn testimony to be similarly under oath." Since Rice is now under fire and the Commission has more leverage, they may hold the line.
Now, what's going on here exactly?
Every White House tries to keep what we might call a penumbra of protection around White House aides. I noted yesterday that two of Rice's predecessors, Brzezinski in 1980 and Berger in 1997, have submitted to testify. But clearly it doesn't happen often.
Yet, having said that, it is very hard for me to grasp the constitutional issue implicated in Rice's taking an oath to tell the truth when she speaks to the Commission.
A constitutional issue involved in a presidential aide speaking to a fact-finding commission? Not a determinative one, I think. But yes, an issue.
Whether the testimony is public? Maybe.
But whether or not the testimony is sworn? I don't get that. This seems especially the case when she wants to appear specifically to rebut other sworn testimony. How can you claim the need to preserve the confidentiality of the president's communications with his top aides, then break that confidence to refute someone's criticism, and then say you won't make the charges under oath?
As far as I can see this is not compelled testimony. So presumably Rice can simply decline to answer questions she thinks tread too closely on her confidential advice to the president, right? Certainly there could be some invocation of executive privilege?
Obviously, not having the testimony sworn gives her ... well, more leeway.
But I'm not sure what the grounds there are to justify it -- especially as she is now eager to speak with the Commission again to challenge Richard Clarke, who, as we know, had to make all his claims under oath. Once again, she wants to lacerate her opponents, but never on a ground that makes for even close to a fair fight.