Karl Rove Refuses to Comply with Congressional Subpoena

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.


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.

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    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.

    I'm shocked, do you hear me (5.00 / 1) (#3)
    by Rhouse on Thu Jul 10, 2008 at 11:23:57 PM EST
    shocked that he refused. snark
    Having said that, doesn't it bother you that we/you feel that you can't trust the Democratic congress any more than a Republican one to not try to go after the executive branch on privilege.
    (I almost typed Demoncratic party - going to see HellBoy II tomorrow.)

    I guess by now (5.00 / 1) (#5)
    by Jeralyn on Thu Jul 10, 2008 at 11:36:40 PM EST
    I expect it of both parties. It's politics. That's one reason I trust the judicial branch more.

    Honestly, (5.00 / 3) (#13)
    by sarcastic unnamed one on Fri Jul 11, 2008 at 01:24:56 AM EST
    if you're a hammer, everything looks like a nail.

    With all the contretemps judges and lawyers have been getting into lately, and written about here on TL, you think the judicial branch have fewer biases and pressures put on them than anyone else in gvt?

    My opinion? They're human. Just like everyone else.

    They have biases. Just like everyone else.

    Whether theose biases are associated with a belief system more closely embodied by one particular political party or another, ot the biases they hold in their natural human desire for power to change the world (in the right way, of course), or just the  biases they grew up with.

    Just like everyone else in our, or any, political system.

    I reject the notion that our, or any, judicial system is absent political ambition significantly more, and/or in a less harmful way, than any other cartel of politicians.

    Power corrupts, whether you're a legislator, executive or judge.

    Meh. The judicial branch is as political as all get out, and if it had more power it would be even more political, despite any bright-eyed and bushy-tailed wish that it is, and/or can be, some non-political Nirvana.

    You should do a thread on this topic. But do it next week when most of us are around...


    Shrug (5.00 / 2) (#14)
    by Steve M on Fri Jul 11, 2008 at 01:27:10 AM EST
    The federal judiciary is more isolated from political pressures.  That matters.  Everything else you say is valid, of course.

    Shrug (none / 0) (#15)
    by sarcastic unnamed one on Fri Jul 11, 2008 at 01:55:54 AM EST
    Political pressures, familial pressures, pressures from neighbors, pundits, the attorneys and judges they brown-bag their lunch with, the guy in the parking garage, etc., whoever.

    Sure, I guess they could be more isolated from "political" pressures. If only that meant their decisions were more better...


    The only (none / 0) (#41)
    by cal1942 on Fri Jul 11, 2008 at 11:58:33 PM EST
    political pressure immunity here is 'tenure during good behavior' - life appointment.

    Everything else counts as we've seen all too often in roughly the last two decades.


    LOL -- yep, in other news (5.00 / 1) (#35)
    by angie on Fri Jul 11, 2008 at 10:12:12 AM EST
    the sky is blue, birds fly and bees sting.
    And yes, I'm very bothered by the complete erosion of the checks and balance system between the executive and legislative branches -- for the majority of the last 7 1/2 years I naively believed it was because one party controlled both, but now, sadly, I know better. Innocence lost.

    He shouldn't, realistically ... (5.00 / 2) (#6)
    by seabos84 on Thu Jul 10, 2008 at 11:44:16 PM EST
    Since the days of RayGun the Dems have been cornered, cowered and crushed by these lying fascists -

    the ailes, atewater rove teams have been out for blood since ... the 1960s? before?

    the Democrats keep letting these lying thieving slime get away with stealing whatever they want AND lying about it,

    so, realistically, why stop now?

    we know King George is gonna pardon all of them somewhere between midnight 4 November and noon 20 Jan, so ... keep stuffing your pockets and keep smiling and keep lying!

    what are they gonna do, stop funding the war? stop rubberstamping rich people welfare?

    put impeachment on the table ?? ha ha ha.

    we - the - peeee-ons gotta STOP giving time, giving money, and giving our votes to sell outs.


    Someone (5.00 / 3) (#8)
    by Jackson Hunter on Thu Jul 10, 2008 at 11:49:59 PM EST
    should send him a sharply toned letter, that'll fix him!  :)

    After what the Regressives did to WJC, I'm surprised so many Congressional Dems are so freakin' nice about this garbage.  I guess they expect the same courtesy in return when (or if) Sen. Obama gets in.  I wish them luck on that.


    How about ... (5.00 / 5) (#12)
    by OrangeFur on Fri Jul 11, 2008 at 01:07:49 AM EST
    ... the congressional Democrats pass a law legalizing skipping out on subpoenas and giving Karl Rove retroactive immunity for not showing up to testify?

    Democrats gives Republicans Retroactive Immunity (none / 0) (#18)
    by boredmpa on Fri Jul 11, 2008 at 05:44:20 AM EST
    would make a great Onion headline.

    Far better than the current one about Bill being sad about putting away his first lady dress.


    Heh. (none / 0) (#31)
    by Emma on Fri Jul 11, 2008 at 09:48:51 AM EST
    Far better than the current one about Bill being sad about putting away his first lady dress.

    Yeah, but that IS funny.


    Apparently it was (none / 0) (#33)
    by scribe on Fri Jul 11, 2008 at 09:51:16 AM EST
    a really pretty dress and he was really looking forward to it and the parties....

    Rove (5.00 / 3) (#19)
    by bobbski on Fri Jul 11, 2008 at 06:45:46 AM EST
    The committee will write Rove a stern letter.

    To be a democrat, evidentially, is to be an easily whipped dog.

    9% Approval (5.00 / 4) (#20)
    by mmc9431 on Fri Jul 11, 2008 at 06:48:06 AM EST
    Episodes like this have contributed to the low approval rating of Congress. It continues to show just how inept they are. They've had 2 yrs of hearings, subpoenas and  refusals to testify, with no resolution. If you're going to take on a fight, then fight.

    Yes, and when you think (none / 0) (#21)
    by weltec2 on Fri Jul 11, 2008 at 07:34:18 AM EST
    how much we pay these people plus all the benefits that they receive -- the health care and so on -- but... that way madness lies.

    Actually doing anything (5.00 / 7) (#24)
    by mmc9431 on Fri Jul 11, 2008 at 07:59:53 AM EST
    About all the criminal activities of this administration would not fit into the new "Unity and Change" agenda that Obama is promoting. I look for nothing to come of any of this stuff and for it all to be shut down if and when he takes office.

    Faster Than You Can Say (5.00 / 2) (#27)
    by The Maven on Fri Jul 11, 2008 at 08:52:03 AM EST
    the presidential oath of office.

    If there are still people out there who genuinely think that a President Obama would aggressively pursue investigations that could lead to criminal prosecutions of Bush Administration wrongdoing, I'd like to disabuse them of their political naïveté.  Any such investigation would be dogged from the get-go by the GOP as an irredeemably partisan vengeance operation, and would thus shut down any possibility of "reaching across the aisle", which is Obama's fondest hope for his post-partisan vision of America.  Obama is far too calculating and compromising to go down that path.


    I'm not a lawyer (5.00 / 2) (#34)
    by mmc9431 on Fri Jul 11, 2008 at 10:01:25 AM EST
    Obama was quoted in an interview in Philly (?) that he would instruct his AG to look into these matters and if there was criminal intent, he would proceed. I don't know how you could prove criminal intent? Wouldn't their argument be that they acting in the interest of national security?

    "criminal intent" (none / 0) (#42)
    by cal1942 on Sat Jul 12, 2008 at 12:08:53 AM EST
    that's the out. If Obama is elected there is no way that any investigations of the Bush Administration will occur.

    Funny how.... (5.00 / 1) (#28)
    by kdog on Fri Jul 11, 2008 at 09:12:02 AM EST
    the "if you have nothing to hide, you have nothing to worry about" meme doesn't apply to the ruling-class crooks.

    When the govt. wants to spy on our communications they say "unless you have AQ on speed dial, you have nothing to fear".  So I say to Rove..."unless you have AQ on speed dial you can appear before Congress under oath, you have nothing to fear."  Since the executive branch is so benevolent, there is no reason to believe Congress isn't...right Karl?

    Why shouldn't Rove (5.00 / 1) (#29)
    by zfran on Fri Jul 11, 2008 at 09:17:02 AM EST
    continue to avoid the subpoenas...it's not like this Dem congress ever really pursues anything really important? Probably the repubs have something over the dems, which the dems don't want to come out, and the dems have something over the repubs, as well, and so we will have a stalemate, nothing will get done, time will elapse and voila, it'll be close to Nov.and all will be at a standstill for the election. Subpeona, what subpeona?

    If the shoe were on the other foot... (5.00 / 1) (#37)
    by Dadler on Fri Jul 11, 2008 at 10:27:26 AM EST
    ...you can be certain the Repubs would have congressional officers arrest the Dem equivalent of Rove.  

    If the Dems aren't going to enforce their subpoena with malice then stop wasting our time.  The courts are now stacked, that's the larger point.  Why would the Bushies worry about going to court when they know, almost assuredly, that they'll come up against a "friendly" jurist.

    Unless the Dems start acting like they have a pair, why waste our time?

    What Rove is doing is simple: (5.00 / 5) (#38)
    by Anne on Fri Jul 11, 2008 at 10:33:01 AM EST
    he's running out the clock, waiting - as they all are - for the flurry of pre-emptive pardons that will be issued to current and former high-level staffers as Bush exits the White House Stage Right; if the only ones left without that protection are low-level staffers whose testimony will just confirm what we already know, and which will be pointless to pursue because there is nothing we can do against those implicated, what will be the point?

    What sticks in my craw is that the moment Nancy Pelosi declared that impeachment was off the table, Bush and his minions knew there would be no consequences for their actions, and they had license to stonewall and drag their feet on every other investigation that could lead directly back to the WH.

    That decision by Pelosi may prove to be the single worst decision made by the Democratic leadership.

    Except (none / 0) (#43)
    by cal1942 on Sat Jul 12, 2008 at 12:13:11 AM EST
    their enthusiastic backing of Barrack Obama which only reinforces what they've been doing (or NOT doing) all along.

    Birds of a feather.


    I tend to wonder... (2.00 / 1) (#2)
    by Salo on Thu Jul 10, 2008 at 11:18:49 PM EST
    ...if Rove was really all that nefarious.  His comments on Fox appear to be grounded in making atute arguments rather than ratF*CK*NG.

    It seem to me that he was most heavily involved in crafting winning arguments that other Republicans could repeat and win elections by out arguing Democrats. He's not that much different from Carville from what I see on public display.

    I don't care about motivations. (5.00 / 1) (#17)
    by Fabian on Fri Jul 11, 2008 at 05:19:55 AM EST
    I care about INFORMATION.

    And this administration won't part with even a byte voluntarily.


    Can't have him under oath (none / 0) (#16)
    by splashy on Fri Jul 11, 2008 at 05:09:49 AM EST
    No way! He can't stop lying - it's pathological with him - so he would end up convicted of something or other if he were under oath because he would get caught in many lies.

    Impeachment (none / 0) (#22)
    by fctchekr on Fri Jul 11, 2008 at 07:48:00 AM EST
    What is Pelosi waiting for? If we as Dems don't hold Bush, Rove accountable it's like a pardon, before the pardon...which will never happen if they're not legally prosecuted. This is about the people's business.

    This is easy... (none / 0) (#23)
    by kredwyn on Fri Jul 11, 2008 at 07:48:09 AM EST
    He's in contempt. Arrest him.

    Except for that minor (none / 0) (#26)
    by standingup on Fri Jul 11, 2008 at 08:17:11 AM EST
    issue of the DOJ refusing to allow Jeffrey Taylor from pursuing the contempt charges.  

    I'm still mad at Schumer for all the work he did to get Mukasey confirmed.  


    I have said before on TL to wait (none / 0) (#25)
    by Saul on Fri Jul 11, 2008 at 08:04:01 AM EST
    until hopefully there is a considerable majority in the Senate and House in 09 then do all this.  This way congress then will have a superior strong arm and can dictate and force all these thugs like Rove, Gonzales and others to testify under oath.

    Unfortunately the true fact is that the all of Bush's main men that Congress wants or wanted to investigate  have a full pardon sitting in a  White House safe and they just need Bush's signature.

    Rove, Gonzales, Libby and others will get a full pardon is my guess before Bush leaves.

    Remember the blank check letter (none / 0) (#30)
    by kredwyn on Fri Jul 11, 2008 at 09:36:17 AM EST
    Cardinal Richelieu gave to Milady in The Three Musketeers?

    9% is the (none / 0) (#36)
    by Slado on Fri Jul 11, 2008 at 10:23:07 AM EST
    apporval rating of congress.  Can't see how it will get any lower but wild partisan goose chases by a congress that can't get anything done (unless you count GW's agenda) will not make it go higher.

    When will the lefties come to grips with the fact that nobody's getting impeached and nobody is going to jail.

    Time to move on.

    Lefty? (5.00 / 1) (#39)
    by mmc9431 on Fri Jul 11, 2008 at 10:44:38 AM EST
    Disregard for the Constitution and corruption of every government agency isn't a lefty issue unless the Democrat's allow the Republican's to paint it as such. Most of these issues go to the core values of this country. Unfortunately the Dem's haven't made the case. These are very middle of the road issues.