I have a story posted tonight on Talking Points Memo quoting Karl Rove’s attorney saying that Rove will cooperate with the federal grand jury probe of the firings of nine U.S. attorneys. The lede to the story:
Karl Rove will cooperate with a federal criminal inquiry underway into the firings of nine U.S. attorneys and has already spoken to investigators in a separate, internal DOJ investigation into the prosecution of former Alabama Gov. Don Siegelman, his attorney said in an interview.
Rove previously refused to cooperate with an earlier Justice Department inquiry into the firings. The Justice Department’s Inspector General and its Office of Professional Responsibility (OPR) said in a report released last September detailing their earlier probe of the firings of the U.S. attorneys that their investigation was severely “hindered” by the refusal by Rove and other senior Bush administration officials to cooperate with the probe.
Rove’s attorney, Robert Luskin, said that Rove, however, will cooperate with a federal criminal probe of the firings being led by Nora Dannehy, the Acting U.S. Attorney for Connecticut who was selected by former Attorney General Michael Mukasey to lead the investigation. Dannehy has recently empaneled a federal grand jury to hear evidence in the matter.
Luskin told me that Rove had earlier not cooperated with the Inspector General and OPR probe into the firings because “it was not his [Karl's] call… it was not up to us decide.” Luskin said that Rove was directed by the Bush White House counsel’s office not to cooperate with the Inspector General and OPR.
Regarding the more recent probe by Dannehy, Luskin said: “I can say that he would cooperate with the Dannehy investigation if asked.”
In recent days, according to legal sources, two former Bush White House officials, including one former aide to Rove, have been contacted by investigators working for Dannehy and asked for interviews. One of the two has agreed to be interviewed.
Regarding the decision to cooperate with Dannehy, Luskin said that Rove “has not and will not assert any personal privileges.” He also said that in regard to the earlier probe, Rove had not done so, but had rather only “followed the guidance of the White House.”
Click here to read the rest of the story.
Whether Rove will testify before the House Judiciary Committee, however, is another story.
As Dan Froomkin has reported:
Just four days before he left office, President Bush instructed former White House aide Karl Rove to refuse to cooperate with future congressional inquiries into alleged misconduct during his administration.
“On Jan. 16, 2009, then White House Counsel Fred Fielding sent a letter to Rove’s lawyer, Robert Luskin. The message: should his client receive any future subpoenas, Rove ‘should not appear before Congress’ or turn over any documents relating to his time in the White House. The letter told Rove that President Bush was continuing to assert executive privilege over any testimony by Rove—even after he leaves office.”
That letter, and a nearly identical one to a lawyer for former White House counsel Harriet Miers, reasserted the White House position that the two former aides have “absolute immunity” from testifying before Congress about anything they did while they worked at the White House — a vastly more extreme and legally unsupportable assertion than, say, a limited claim of executive privilege.
The letters set the stage for what is likely to be a highly contentious legal and political battle over an unresolved issue: whether a former president can assert ‘executive privilege’—and therefore prevent his aides from testifying before Congress—even after his term has expired.
“‘To my knowledge, these [letters] are unprecedented,’ said Peter Shane, an Ohio State University law professor who specializes in executive-privilege issues. ‘I’m aware of no sitting president that has tried to give an insurance policy to a former employee in regard to post-administration testimony.’ Shane likened the letter to Rove as an attempt to give his former aide a ‘get-out-of-contempt-free card’.”
Rove’s lawyer, Robert Luskin “said that he forwarded a copy of Fielding’s letter, as well as the subpoena he got from Conyers, to Obama’s White House counsel, Greg Craig, and essentially asked for the new president’s position on these matters.
“So far, he said, Craig hasn’t responded.
I don’t ordinarily make predictions on my blog. (Oops, there goes my invitation to appear on the McLaughlin Group!) But in this case, I think I know what is going to happen.
The Obama White House will not invoke executive privilege for the chief political advisor for a Republican President, not because of politics, but for these reasons:
1. The federal judge who has been considering the Bush White House’s executive privilege claims– an ideological conservative who was appointed by Bush– has been scathing in his criticism of the claim in this instance.
2. It would simply be bad case law to continue defending the claim of executive privilege, as Jack Balkin explains.
3. Nobody in the White House counsel’s office or DOJ will want to twist the law in any case. To consider the changes that have come to Washington, a former attorney for CREW, now works in the Obama White House Counsel’s Office. Norman Eisen who is the president’s special counsel for ethics and government reform, as a co-founder of CREW, had sued the Bush administration to recover and disclose missing White House emails. It would not seem that he is much of an advocate of radical expansions of executive privilege for presidential aides of former administrations.
And one of Jack Balkin’s former blogging partners at Balkinization now works in the Obama Justice Department’s Office of Legal Counsel.
Finally, there is President Obama himself: a former constitutional law professor.
Update: Buck Naked Politics’ take.