A big question of late is whether Karl Rove will be compelled to testify before Congress on his role in the politicization of the Department of Justice, specifically in the investigation of Don Siegelman. Rove has claimed an expanded version of executive privilege: "absolute immunity" from congressional subpoena.
Today a big decision undercuts Rove's entire argument. U.S. District Court judge John Bates (a Republican appointee, notably) ruled against Harriet Miers and Josh Bolten in their claim of executive privilege. It determines that Bolten and Miers must comply with the subpoenas and appear before Congress.
But the bigger impact may be on Rove. Bates eviscerates Rove's entire justification for ignoring the congressional subpoena, citing that "absolute immunity" has no basis in case law and was rejected in the case of--you guessed it--U.S. v. [Richard] Nixon. emptywheel explains further:
But with respect to Rove, this decision makes it very clear that Rove must show up to testify--and (unless the White House invokes executive privilege with respect to the HJC subpoena of Rove, which they haven't done) he must answer all questions. That's because the sole basis the White House gave to justify Rove blowing off HJC's subpoena was "absolute immunity"--the White House did not invoke executive privilege with regards to this subpoena.
And here's the key line and quote from
Bates' decision:
The Executive cannot identify a single judicial opinion that recognizes absolute 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. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.
In other words, the oversight role and strength of Congress has been vindicated, and now they must apply it. Karl Rove must appear before Congress to testify immediately. He has offered no justification for his absence that stands up to the rule of law. And Miers and Bolten must appear immediately, too.*
Congress goes on recess for the whole month of August. They leave this weekend. I say: let's do the hearings tomorrow. The rush home to raise reelection money can wait a day so that we can restore the rule of law here in our democracy, or so one would hope.
We'll have a statement out soon.
*
UPDATE (or NOTE): I should note that, frankly, this White House has shown itself masterful at stalling tactics to drag out oversight proceedings. I'd expect nothing less this time. But it's all the more important that Congress show some real urgency in holding these hearings, and fast-track any judicial proceedings and hurdles that the White House throws up. Time is short but the institutional impact of an executive branch that abuses its power and defies the Constitution will be long.
I'm a bit mixed up about the impending showdown over the US attorney firings. On the one hand, as a student of American government it's fascinating to examine the constitutional elements of arguments over executive privilege and congressional subpoena power.
On the other hand, the politicking disgusts me.
The White House has stated that any and all communication by former WH political director Sara Taylor and former counsel Harriet Miers - both internal and external - falls under executive privilege. This unprecedented broad application of privilege has undercut and delayed the investigation into what really happened with the firing of the US attorneys for political reasons.
Yesterday, Sara Taylor testified before the Senate Judiciary Committee (you can see video here). She used her letter from White House counsel Fred Fielding directing her not to answer questions pertaining to allegedly privileged communication as an excuse not to answer the majority of questions from Committee chair Patrick Leahy (D-VT) and other tough Democratic questioners.
Given the "parade" of DoJ officials who have come before Congress and delivered weak testimony claiming to know nothing about how the US Attorney, the next step for congressional investigators is obvious, the New York Times says:
It is time for Senator Patrick Leahy, the chairman of the Judiciary Committee, to deliver subpoenas that have been approved for Karl Rove, former White House counsel Harriet Miers and their top aides, and to make them testify in public and under oath.
Especially after this week's laughable testimony from former Missouri US attorney Bradley Schlozman, it's become clear that answers are not going to be had from Department of Justice officials who appear to be suffering from a worrisome memory loss epidemic.
Yesterday's New York Times ran an editorial summarizing what's come to light about the firing of eight US Attorneys in recent weeks. They lay out the conclusions that are becoming more and more difficult to ignore:
At best, the firing of eight United States attorneys, most of them highly respected, is an example of such profound incompetence that it should cost Mr. Gonzales his job. At worst, it was a political purge followed by a cover-up. In either case, the scandal is only getting bigger and more disturbing.
New reports of possible malfeasance keep coming fast and furious. They all seem to make it more likely than ever that the firings were part of an attempt to turn the Justice Department into a partisan political operation. There is, to start, the very strong appearance that United States attorneys were fired because they were investigating powerful Republicans or refused to bring baseless charges against Democrats.
Such as Carol Lam, who put Duke Cunningham (R-CA) behind bars...or Paul Charlton, who was investigating Rep. Rick Renzi (R-AZ). Given last week's revelations from former dupty attorney general James Comey (2003-2005) that most of the prosecutors performed well - or even exceptionally - and from some of the fired attorneys that they were pressured, or even threatened, by Michael Elston, an aide to the deputy attorney general, the NYT challenges our representatives to do what's right and pursue the whole truth.
It is long past time for President Bush to fire Mr. Gonzales. But Congress, especially the Republicans who have dared confront the White House on this issue, should not be satisfied with that. There are strong indications that the purge was ordered out of the White House, involving at the very least the former counsel, Harriet Miers, and Karl Rove.
It is the duty of Congress to compel them and other officials to finally tell the truth to the American people.
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