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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