Karl Rove Subpoenaed, Don Siegelman Files Appeal Brief

Former Alabama Governor Don Siegelman filed a 99 page appeal brief today. I received a copy of the brief but it says "embargoed until tomorrow" so I'm not uploading it tonight.

The part that addresses Karl Rove is contained in a sentencing argument. The Court departed upwards from the sentencing guidelines because of unspecified statements Siegelman made to the media critical of the Executive Branch. (I quote some of that argument at the end of this very long post.)

Karl Rove was subpoenaed today by the House Judiciary Committee. His lawyer will fight the subpoena. From the April, 2008 Judiciary Committee report (pdf): [More...]

There is extensive evidence that the prosecution of former Governor Don Siegelman was directed or promoted by Washington officials, likely including former White House Deputy Chief of Staff and Advisor to the President Karl Rove, and that political considerations influenced the decision to bring charges.

Several witnesses have corroborated testimony before two Judiciary Subcommittees that the investigation against Governor Siegelman was “coming to a close” without charges until Washington officials directed local prosecutors to
go back over the matter from top to bottom, and that decisions regarding the Siegelman case were being made at the very highest levels of the Administration.3

That testimony in turn corroborates the sworn statements of a Republican attorney that the son of the Republican Governor of Alabama told her that Karl Rove had pressed the Department to bring charges.4 The issue of the involvement of Mr. Rove or others at the White House in the Siegelman case remains an important open question.

Karl Rove has said in the past he had no conversations with the White House about Siegelman. That raises the issue of whether there is any executive privilege for him to assert on the Siegelman case. Even if there isn't, the Committee is also investigating the U.S. Attorney firings, and Rove has asserted the White House privilege there.

Gov. Siegelman was on the Abrams Report tonight. He suggests the Judiciary Committee subpoena associates of Karl Rove for whom the White House doesn't have an executive privilege claim.

Rep. Conyers today differentiated Rove's case from Harriet Miers, noting Miers hasn't made any public statements.

If the Committee holds Rove in contempt, the likely result will be that the Justice Department would then decide whether to file contempt charges against him. While there is an "inherent contempt power" in the Congressional manual, it hasn't been used since 1935. So those hoping for Rove to be brought and tried before the full House and jailed are not likely to have their wish fulfilled.

Here's a snippet from Siegelman's brief on the sentencing issue:

On sentencing, the issue is simple: neither the First Amendment, nor the sentencing factors in 18 U.S.C. § 3553, allow Governor Siegelman’s sentence to be increased as punishment for out-of-court statements on a matter of grave public concern, i.e., the motivations and actions of prosecutors.

The District Court plainly did this: it applied a Guidelines upward departure, on the prosecution’s motion, based on taking “judicial notice” of out-of-court statements by Governor Siegelman to the effect that his prosecution was improperly motivated. No such specific statement was cited, much less quoted.

The particulars of the argument in this regard, and of the District Court’s action, have been quoted extensively in the statement of facts, above. In summary, Governor Siegelman received a longer sentence than he would otherwise received,
because he made certain unknown, unquoted and unspecified out-of-court statements questioning the motives and actions of the Executive branch of the United States Government.23

23 This case does not involve punishment of any in-court statement, punishment of any criticism of a court itself, or even punishment of any statement that interfered with the fairness of a trial. It also does not involve any statement that was completely lacking in factual basis, and that the speaker knew to have no factual basis. There is no finding – and equally important, no evidence whatsoever – that Governor Siegelman made any statement coming within any of those categories.
Statements of those other sorts might, on some sets of facts, raise questions that are
not present here.

Whether the prosecutors in this case were improperly motivated (and whether their actions and tactics were ethical and lawful) was, and is, a matter of grave public concern. It is a legitimate – even a vitally important – subject of
inquiry in a free society: whether prosecutors, rather than investigating a crime, have set their sights on an individual because of partisan politics. Since sentencing, it has become all the more clear that this is a matter of real public
concern in this case, and in the nation more generally. The public concern includes the firing of United States Attorneys who, in the view of many, were removed because they did not undertake prosecutions to the partisan advantage of the
political party that currently controls the Executive Branch. It includes whether there was improper political motivation, in Alabama and in Washington DC, for this prosecution in particular. It has been, and still is, the subject of investigatory journalism, editorials, Congressional investigation, and public debate. This Court can and should take judicial notice of this public concern, without taking sides on whether the facts will ultimately bear out the concern.

Public concern on this very issue, relative to this very case, has been expressed by public officials, the nationwide media, and private individual citizens. The Committee on the Judiciary of the United States House of Representatives, we discussed above, has declared in a report:

There is extensive evidence that the prosecution of former Governor Don Siegelman was directed or promoted by Washington officials, likely including former White House Deputy Chief of Staff and Advisor to the President Karl Rove, and that political considerations influenced the decision to bring charges.

“Allegations of Selective Prosecution in Our Federal Criminal Justice System,” p. ii.24 The report continues, “There is also significant evidence of selective prosecution in the Siegelman case.” Id. The report recognizes that this is a matter of wide public concern:

Concerns that politics may have played a role in the investigation and prosecution of Don Siegelman have been widely aired in the local and national press, culminating in a petition urging the Committee to open this inquiry that was signed by 44 former state Attorneys General, both Democrats and Republicans, and received by the Committee in July 2007.

Id., pp. 8-9. The speech for which the District Court increased Governor Siegelman’s sentence was speech on topics that are of wide and intense public concern.

The First Amendment does not permit punishment for such speech on such matters of public concern. “There can be no doubt that the constitution continues to operate, even after a valid conviction, in the sentencing process. Accordingly, a court may not punish an individual by imposing a heavier sentence for the
exercise of first amendment rights.” U.S. v. Lemon, 723 F.2d 922, 937 (D.C. Cir. n1983)....

So, Karl Rove is subpoenaed re: Siegelman and Siegelman submits his arguments to overturn his conviction and sentence.

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    Kicking derriere (5.00 / 1) (#8)
    by Lora on Thu May 22, 2008 at 09:15:11 PM EST
    I hope Siegelman's case is what Conyers referred to when he spoke of kicking Rove's rear end.

    I also hope someone -- anyone -- takes a good hard look at Siegelman's allegations that his 2002 election was stolen by the Republicans in an illegal midnight recount.

    Speaking of recounts... (5.00 / 1) (#10)
    by sickofhypocrisy on Thu May 22, 2008 at 09:23:09 PM EST
    HBO is airing their original movie Recount (about the 2000 election...still gives me heartburn). Evidently it's quite good.

    Wexler calls for inherent contempt (5.00 / 1) (#12)
    by joanneleon on Thu May 22, 2008 at 09:43:51 PM EST
    FWIW, Rep. Wexler sent an email to his WexlerWantsHearings email list urging the House to exercise inherent contempt if Rove refuses to testify:

    If Rove refuses to testify voluntarily and ignores the subpoenas that will certainly be issued, he should be held in Inherent Contempt of the House of Representatives.

    No American is above the law.  None of us should be able to ignore Congress without consequence.   If Mr. Rove ignores a subpoena from the Judiciary Committee, then the House of Representatives should pass an Inherent Contempt citation and exercise our right to send the House Sergeant-of-Arms to gather Mr. Rove and bring him before Congress to testify.

    I'm not sure where this will go.  At this point, I don't know if Wexler is doing anything more than encouraging people to contact Congress and advocate for inherent contempt.  I'm not sure if there is anything else he can do.  But it's an interesting move.

    I am surprised that Conyers hasn't (5.00 / 1) (#15)
    by inclusiveheart on Fri May 23, 2008 at 07:35:56 AM EST
    pursued calling Reily's son and Canary to testify.

    I've thought for some time now that the Siegelman persecution was the model for Rove's Attorney General "program" for lack of a better term.

    Democrats unlike Republicans tend to run like hell from any colleague who is even vaguely accused of wrong-doing.  Rove was exploiting that weakness.  It would be harder to do this to Republicans because they tend to stand behind their colleagues even when they know they are guilty as sin.

    Conyers going after Rove first, (5.00 / 1) (#16)
    by scribe on Fri May 23, 2008 at 10:22:58 AM EST
    is actually a pretty smart strategy, derived from experience.  It's a little long, so follow along.

    Think back to the Scooter Libby case.  Rove was a suspect alongside Libby, as later un-redacted portions of the opinions in the case (particularly as to Judy Miller's jailing) made clear.  Rove was, IIRC, suspected of perjury, among other things.  And, he went to the grand jury and testified five times.

    No one goes before a grand jury five different times to testify about the same allegedly-criminal activity.  No one.

    And, remember also, there was a huge kerfluffle just about 2 years ago (June 2006 - longtime readers here will recall I called the date) in which it had been reported, variously, that Rove had been indicted, that he (or Luskin) were in meetings with Fitzgerald about an indictment or plea, and such.  Luskin claimed to have received a letter from Fitz indicating Rove would not be charged, but never came forward and actually produced it.  He was thisclose to getting charged, too - leave it at that.

    The only plausible (to me, as a lawyer) reason for Rove to go back before the GJ (and, IIRC, he asked to go back) the fourth or fifth time was to clarify his testimony, i.e., recant, or place some new spin on his version of the truth.  This all came about after someone (whose name escapes me now) came forward and gave sort-of an alibi that kinda put a fuzz on whether Rover was actually being untruthful or not - it attacked an underlying fact or two in the case from an odd, sideways angle.

    The thing is, Rove was (through counsel and/or investigators) almost certainly able to find out what the other witnesses had testified to.  One needs to remember that the members of the grand jury and prosecutorial personnel who have access to them and the proceedings are subject to keeping what goes on secret.  People who testify to the grand jury are not bound to keep secret what they testify.  

    In theory, one can walk up to a witness after they testified to the grand jury and ask them "what did you tell the grand jury" and they will be perfectly free to tell you.  They might lie to you  or not, or tell you to get lost - but it's the witness' right to tell anyone or no one.

    Many, many many of the people who testified at Libby's trial were DC insiders and deeply wired-in Loyal Bushies.  They all had something to gain - and something to lose - vis-a-vis Rove (still, even after being "fired", very powerful in DC and now "consulting" for McCain) and their testimony.  This is not to say any of them shaded their testimony or testified falsely, but rather that they had the ability to trade profitably for themselves by telling Rove and/or his investigators/counsel what they had told the grand jury.  A pure barter economy where the currencies are favors and information - which is what a lot of politics is.

    In the context of a perjury case, the truth is what the testimony and evidence before the Court says it is.  Looking at that from another angle, in a perjury case where (as in Libby's case) there are few or no objective documents (and/or many of the documents - e-mails - can't be found for one reason or another), then one has to accept that there is no objective truth.  One can try a car accident case and point to the objective evidence of damage to particular parts of the cars and passengers - that's a case with some level of objective truth.  But that does not obtain in a perjury case - it is nearly-purely a function of whether all the prosecution's witnesses' and the defendant's stories agree, or whether the defendant's story is at odds with the prosecution's witnesses'.  If they agree - not guilty because everyone agrees "X" happened.

    For the target (Rove) of a perjury charge to know what the other witnesses said before the target goes before the grand jury is a huge advantage.  This is not to say that the target would necessarily lie or testify falsely, but rather that he might remember or not, or cast his answers based upon what he knew the others had said prior to his testifying.  Once someone testifies, they are "locked in" to their testimony - they cannot change it without (at a bare minimum) looking silly or (more likely) getting themselves in serious trouble.

    It seems very clear (to my eyes, anyway) that Rove went before the Libby grand jury multiple times to clarify and color in his testimony.  It would only be sensible to this lawyer's eyes for him to do that clarifying and coloring in response to what others who testified had said, all this so as to exculpate himself.  This is not a stunt for the faint of heart (client or counsel), nor for the client who lacks disciplined speech and communication.  If there's one thing about Rove which is clear, though, it is that he both has brass and knows how to stay on message.  And, it would seem, he pulled it off.

    This should explain why, therefore, Conyers want's Rove to come in and testify first.  He will be locked in to his testimony.  Other witnesses' testimony will not be available to him.  And he will not be able to trade future favors and/or information for favorable testimony or knowing what the testimony is, in advance of going before the House.

    I once had the acquaintance of a lawyer whose nickname was "the Mongoose".  She got it because she "killed snakes" (of the lawyer and client varieties).  That's what's going on here.


    I agree that Rove testifying first is (5.00 / 1) (#17)
    by inclusiveheart on Fri May 23, 2008 at 10:51:42 AM EST
    smart - completely.  That doesn't bar Conyers from calling those other witnesses in a closed hearing - still risky I know - we all know that Ford was feeding info to the Nixon Administration about Wright Patman's House Banking Committee hearings and blocking them as much as he could - and Fred Thompson did the same when the full blown Watergate hearings began...  

    But Siegelman's assertion was that Canary and Bob Reily's son can't claim executive privilege and refuse to testify or appear.  What would make things really, super interesting would be if those two did claim executive privilege.  That would be a real trip.


    Not likely to happen (5.00 / 1) (#18)
    by scribe on Fri May 23, 2008 at 11:35:22 AM EST
    that they'd claim executive privilege, because that would be a clear finger pointing directly at Bushie (and those closest to him) for being the driving force behind the Siegelman prosecution.  It's not like some seventh-level folks out in Alabama are giving advice to or consulting with the President ... ever.

    In fact, that's so unlikely, that I'd speculate they'd probably lie before claiming executive privilege.


    The Reilys are by no stretch of the (5.00 / 1) (#19)
    by inclusiveheart on Fri May 23, 2008 at 12:28:00 PM EST
    imagination "seventh-level", but that's neither here nor there.

    In any case, I wasn't prediction so much as musing about the possibility - as it stands now plenty of people who have been called to testify have claimed Executive Privilege whilst concurrently claiming that the President has had nothing to do with their activities.  I was wondering just how far these people might push that farce...


    They will push it (5.00 / 1) (#20)
    by scribe on Fri May 23, 2008 at 12:51:10 PM EST
    until someone stops them.

    You remember the quote, attributed to Lenin:  
    "Probe with a bayonet.  When you find mush, keep going.  When you find steel, stop and go elsewhere."

    Rethugs learned that one in the crib.  
    Would that our Democratic leadership had, or at least understood it.


    You know what's ironic? (5.00 / 2) (#21)
    by inclusiveheart on Fri May 23, 2008 at 01:32:00 PM EST
    The Republicans don't scare me nearly as much as the fact that the Democrats insist on being "mush" claiming that maintaining a bipartisan detente is somehow "better" for the country than shutting their criminal activities down.  That scares me.

    Well, we know that Rove is at the root of most of (none / 0) (#1)
    by Angel on Thu May 22, 2008 at 08:47:00 PM EST
    the evil in DC for the past many, many years.  But he will never pay for his deeds.  What a shame and what a travesty.  What in the world has become of our country?  We can't count the votes for a presidential election or a presidential primary; we have an administration that is corrupt beyond belief; and we have an electorate that gets its information from the FAUX news channel and nefarious bloggers; and we have a media who has been complicit every inch of the way.  How will we ever recover?

    Get rid of (none / 0) (#3)
    by pie on Thu May 22, 2008 at 08:54:22 PM EST
    presidential pardons?



    In defense of Faux News, (none / 0) (#5)
    by sickofhypocrisy on Thu May 22, 2008 at 09:00:18 PM EST
    they're the only ones who have truly been fair and balanced during this election cycle.  They have equal disdain for both Dem candidates.  I'll happily settle for that over the 24/7 Obama Lovefest that's going on at CNN & MSNBC.  

    I actually agree with you (5.00 / 1) (#13)
    by Iris on Fri May 23, 2008 at 01:44:02 AM EST
    MSNBC/NBC are the absolute worst right now.  It is shameful and I can't [unnamed close relative] to stop watching it.  I wouldn't normally try to tell her what to watch, but it seems to have her convinced that everyone around her is an uneducated racist.  Oh, and also that 'experience isn't important.'  CNN isn't too much better recently.  Fox has a unique outsider perspective, and thus looks on at Obama with equal skepticism as to Clinton.  Observe this Terry McAuliffe interview with John Gibson of Fox.  This is John Gibson, for crying out loud.  The fact that he's more objective (and calm) than the pundits on the other networks is a bit strange to get used to, but 'facts are stubborn things.'

    Yes, but (none / 0) (#2)
    by pie on Thu May 22, 2008 at 08:52:44 PM EST
    if Rove is pardoned, it means nothing.

    Do you think (5.00 / 1) (#4)
    by sickofhypocrisy on Thu May 22, 2008 at 08:58:47 PM EST
    there's any chance that the Dems dragged their feet on the Rove investigation so that Bush would be out of office and unable to pardon him by the time all was said and done?

    Could they have been that brilliant?  Let's face it, they're not known for evil genius.  I'd be in awe of them doing something so, well...Rovian.  :)


    Bush will pardon Rove, (5.00 / 1) (#6)
    by pie on Thu May 22, 2008 at 09:11:05 PM EST
    and he won't serve a day in jail.  No trial, even.

    Remember Iran-Conta?


    Wonder if Obama would commit (5.00 / 1) (#14)
    by Iris on Fri May 23, 2008 at 01:47:45 AM EST
    to not pardoning Rove?  Has anyone thought to ask?

    Perfect illustration of why I support Hillary: I don't have to ask.  She knows that some of these Republicans in power the past 8 years are literal, bona fide criminals.  

    Obama?  Not so sure.  Would he pardon Rove under pressure to be bipartisan?  The point is I don't know, and I doubt he would make a commitment either way.


    Can pre-pardon? (5.00 / 1) (#7)
    by ineedalife on Thu May 22, 2008 at 09:12:22 PM EST
    Didn't Papa Bush give Caspar Weinberger a blanket pardon before he left office?

    Yep. (none / 0) (#9)
    by pie on Thu May 22, 2008 at 09:16:58 PM EST
    Oh when the frogs! (none / 0) (#11)
    by magnetics on Thu May 22, 2008 at 09:30:14 PM EST
    Go marching in!

    Excuse Me? (none / 0) (#22)
    by creeper on Fri May 23, 2008 at 03:15:22 PM EST
    They increased his sentence because he protested his treatment?

    Surely I'm not reading that right!