Karl Rove Refuses to Comply with Congressional Subpoena

By Jeralyn, Section Other Politics
Posted on Thu Jul 10, 2008 at 11:04:44 PM EST
Tags: Karl Rove (all tags)

Share This: Digg!

Karl Rove did not appear today before the Congressional Committee that subpoenaed him to testify regarding its investigation into the politicization of the White House, including the Don Siegelman matter.

His lawyer, Robert Luskin, explains why here (pdf). While Rove didn't claim any personal privilege, Luskin notes the White House directed Rove not to appear. His letter includes a written letter from the White House dated yesterday and two memorandums from the Justice Department explaining why Rove, as a former close adviser to the President, cannot be compelled to answer questions about matters that arose during his tenure and relate to his official duties. Luskin says Rove is immune from compelled Congressional testimony.

More...

Luskin says Rove remains willing to appear for an informal interview or answer written questions about Siegelman. If the committee isn't satisfied with the information obtained from Rove under these alternatives, it could seek to enforce its subpoena.

He concludes by saying he doesn't understand why the Committee won't agree to his alternative proposals and limit its questioning to Siegelman, rather than insisting Rove be asked about "factually distinct" matters.

A vote on the contempt citation is not expected until the end of July.

The Judiciary Committee could approve both civil and criminal contempt resolutions against Rove, which would then go to the floor of the House for a final vote.

.....But the Judiciary Committee is already in a legal battle with the Bush administration over earlier subpoenas issued to White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers. Although the House approved criminal-contempt resolutions against both, the Justice Dept., citing earlier legal opinions, refused to bring criminal charges against Bolten and Miers. The Judiciary Committee then filed a civil lawsuit against the White House to enforce the subpoenas. The case is now in federal court, and it is unclear if there will be an decision in the case prior to the start of the August recess.

My view: Let the courts decide. If the situation were reversed, I wouldn't want a Republican controlled congressional committee to have the authority to override an Executive Branch privilege or immunity claim regarding a Democratic adviser to a Democratic President. Nor do I accept the word of the Justice Department. This is why we have independent judges. That's who should make the call.

Update: Marcy at Empty Wheel says that reporters have it all wrong and that Rove and Luskin aren't claiming executive privilege but immunity and they are different.

< Thursday Night TV | Assembly Line Justice >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Karl Rove Refuses to Comply with Congressional Subpoena | 43 comments (43 topical)

Readers Must Login or Create an Account to Comment

Well gosh (5.00 / 1) (#1)
by Steve M on Thu Jul 10, 2008 at 11:15:55 PM EST

If the White House were to admit that it asserts executive privilege with regard to questions about Siegelman, that would be politically explosive.

But it doesn't seem like the subpoena was drafted to reach that result. Instead, it apparently refers to "the politicization of the Department of Justice, including issues relating to Siegelman." So you can't necessarily infer anything. The executive privilege they're asserting relates to actions of a presidential aide in connection with his official duties - not necessarily communications with the President himself - so they're not admitting Bush was involved with the politicization of the DOJ.

It could be politically productive for Congress to require Rove to appear and to assert the privilege in response to individual questions, particularly those relating to Siegelman.

Last I saw, the judge in the earlier contempt case sounded inclined to punt because Congress has inherent contempt powers and doesn't need the courts to resolve these disputes. That would be a shame, because I agree with the post that the whole thing looks more legitimate if the courts weigh in. The only problem is that you risk setting highly politicized precedents if you draw the wrong judge, as with some of the Clinton-era cases.

But, Even if you draw the wrong judge (none / 0) (#4)
by Jeralyn on Thu Jul 10, 2008 at 11:34:31 PM EST

and get a bad ruling, you can still take it to the circuit court of appeals and have mutliple judges decide. At least it takes the politics out of the decision making.

I agree the White House is not making any admissions about particular conversations with the President by claiming executive privilege.

As to making him claim the privilege on individual questions, doesn't that wade into territory of selective invocation of the privilege, a la Patty Hearst, or is that just applicable to the privilege against self-incrimination? I only deal with the latter, not with executive privilege.


And we all know how apolitical (5.00 / 3) (#32)
by scribe on Fri Jul 11, 2008 at 09:49:07 AM EST

those judges on the DC Circuit are. Guys like Sentelle (Republican fixer), Silberman (Republican fixer, helped with Reagan/Bush October Surprise, 1980 version), John Roberts (formerly of DC Cir and now Chief Justice, author of a lot of the OLC opinions/memos which his former boss Friendly is warping to support keeping Rover from testifying), Kavanaugh (co-author of the Clinton Impeachment Prono Report, former assistant to the current President)....

Need I go on?

The core issue - being clouded by "let the Courts decide" - is not only that the Court in question is stacked to come out one way but, more importantly, that this Administration has broken the system by which disputes were resolved and, instead, has chosen a path of seizing as much power as it can, regardless of Law. Bush is well on his way to realizing his dream - status as Dictator - and the Congress sits there diddling itself over whether to give Rove another thirty days to comply with something he'll never comply with.

Frankly, one should not allow oneself to follow the natural professional affinity which criminal defense attorneys have for each other and their clients, and should instead recognize that the situation has gone well beyond civility.

And, one should not be deluded by the "reverse the positions" argument - think back ten or twelve years to the abusive conduct of, say, Dan Burton and his multifarous subpoenas (issued, IIRC, under the supervision and scheming of Barbara Comstock, late of the Scooter Libby defense fund). The "shoe's on the other foot" argument's ship has sailed, and the only reason the Republicans didn't do worse (in the 90s and during this decade, too) is that they felt they couldn't get away with it. That - fear - and not some level of civility or decency was the only check on their behavior. They've sown the ill wind, not the Democrats. And the Republicans should feel the whirlwind.

Starting with Mr. Rove.


: scribe (none / 0) (#40)
by cal1942 on Fri Jul 11, 2008 at 11:45:57 PM EST

wish I could give you 50 5s on this one.

Well (none / 0) (#7)
by Steve M on Thu Jul 10, 2008 at 11:45:48 PM EST

I was thinking more in terms of making him claim the privilege with respect to specific subject matters.

For example, he can make a colorable claim that hiring/firing at the DOJ was something relating to the scope of his official duties, but he could hardly say something like that with respect to the Siegelman prosecution, because he'd have no reason to be touching it.


: I don't have a subscription (5.00 / 2) (#11)
by standingup on Fri Jul 11, 2008 at 12:32:32 AM EST

to the National Law Journal but they have an article where Robert Weiner, former Clinton WH Counsel, explains his understanding of this claim of immunity vs. executive privilege. The ACS Blog has an excerpt and a link to the article (subscription required).

...Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests.
This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president's closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued one in 1999....
The portion I bolded, if upheld in court, would really change the landscape for Congressional oversight. I'm not sure I would want the balance to tilt that far in favor of the executive branch.

make that exeuctive privilege (none / 0) (#9)
by Jeralyn on Thu Jul 10, 2008 at 11:55:04 PM EST

or immunity. It's not clear they are asking for executive privilege as opposed to immunity, see Marcy's post in my update. She believes Rove and the White House are only claiming immunity.


: Interesting (none / 0) (#10)
by Steve M on Fri Jul 11, 2008 at 12:02:45 AM EST

I think Marcy is right. She is so smart about this stuff.