Murray Waas » House Judiciary Committee

Karl Rove to Cooperate with federal grand jury probing firings of U.S. attorneys; As for Congress, that’s another story

murrayw — Tue, 03 Feb 2009 08:02:26 +0000

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.

The Obama White House will soon weigh in. As Zachary Roth has reported, the Obama administration is due in court on Feb. 18 to argue the matter one way or the other.

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.

The Dog Days of Summer and Executive Privilege

murrayw — Fri, 08 Aug 2008 06:38:29 +0000

Late last week, a Federal District Court Judge had scathing words for the Bush administration for claiming executive privilege for refusing to allow former senior White House aides to testify before Congress about the firings of nine U.S. attorneys.

Judge John Bates rebuked the Bush administration for what he said was their “unprecedented” claim of executive privilege.

The scathing opinion said: “The executive cannot identify a single judicial opinion that recognizes immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

Bates went on to say that he doubted very much that if the White House appealed his decision, they had even a remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by Presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs. Testimony about the firings of U.S. attorneys was not in that class. And therefore there was little likelihood that a higher court would reverse his decision, Bates said.

Bates suggested that Congress and the White House settle their dispute and allow testimony about the U.S. Attorney firings, even scheduling a settlement conference for Aug. 27, as if his the parties to the case were not the President of the United States and the U.S. Congress– but parties to a small claims court.

Inasmuch as Bates was appointed to the bench by President Bush in 2001 and once worked for Whitewater Special Prosecutor Kenneth W. Starr, he has impeccable conservative credentials.

So did the White House take the judge’s suggestion and agree to negotiate with the House of Representative, agreeing to use him as a mediator of sorts?

Rep. John Conyers, (D-Mich.), the chairman of the House Judiciary Committee hoped that some agreement could be reached with the White House and his committee could hear testimony when Congress returns from its summer recess in September, saying he hopes the White House will “accept this decision” and finally allow Miers and others to testify.

But as Johanna Neuman of the Los Angeles Times first reported, the White House has decided there is no room for compromise.

The White House had told Judge Bates that they wish to appeal his ruling. Here is what they said in a court filing:

Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers.

The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

By then, of course, either Barack Obama or John McCain will be president of the United States.

The motto of this blog: We blog, you decide. (Uh oh, I hope I am not served with legal papers by Fox News in the morning!)

And so for that high minded editorial reason, I am not going to offer an opinion as to whether the White House has delayed testimony on the U.S. attorney firings until after the election because of high minded principles (what the White House says) or to conceal their own wrongdoing (what Democrats say) and to help the McCain campaign by assuring that there are politically embarrassing hearing only a couple of months or so before the Presidential election. Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

But if there was a political calculation in withholding testimony by Rove, Miers, and White House officials, is that going to actually lhelp the Republicans in the fall elections?

The answer is almost certainly not:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman.

If the reporting of Evan Perez of the Wall Street Journal is correct (and I have great faith in his reporting) the Justice Department will likely make public report its scathing reports on the U.S. attorney firings and the politicization of the Civil Rights Division sometime in September or even earlier. (I don’t have any personal knowledge of when the reports will be released.)

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers.)

Add to that that a potential prosecution of Bradley Schlozman, or more disclosures about what the federal grand jury probing Schlozman has been uncovering, and the political damage could reach a crescendo.

At that point, even if the motives of the Bush administration in being unyielding in its executive privilege claims are indeed only because of what they view to be a high minded defense of constitutional principles (Judge Bates’ opinion aside), the politics of continuing to do so might prove not only to be harmful to John McCain’s presidency, but devastating to the Republican House and Senate candidates in the fall.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pubic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

When Dan Bartlett was White House counselor, he was an influential advocate– too often overruled because of advice proferred the President from Dick Cheney and other hardliners– of pre-emption and full pubic disclosure. Playing that role today is Deputy White House press secretary Tony Fratto. But Fratto and similar minded White House advisers lack the clout too often to have their sensible advice listened to.

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

For now, the executive privilege debate has been relegated to the back pages of newspapers and it might appear to be smart politics to stand tough in the face of congressional subpoenas. The dog days of summer, a Summer Olympics, a presidential election– and even other administration scandals have largely drowned out the issue of the firing of the nine U.S. attorneys.

But either this fall, or even before, all of that is almost certain to dramatically change.

And claims of executive privilege by the President of the United States to disallow his top aides to testify on Capitol Hill could prove devastating to his own political party. Republican House and Senate candidates are no doubt going to be damaged by the executive privilege claims becoming a front and center issue just prior to the election.

In the end, the President’s continuing claim of executive privilege– whether made for high minded reasons of constitutional law, obstinacy, or for political calculation– could prove to be a last unwanted legacy that George Bush leaves behind for his own political party.

Update: My friend Marcy Wheeler disagrees. (She is probably right!!)