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Rove Deadline Delayed

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John Conyers has delayed Rove’s deadline to give a deposition by three weeks–from February 2 to February 23.

But before he left office, Bush, acting through former White House Counsel Fred Fielding, decided not to respond to any congressional subpoenas. Bush, citing executive privilege, asserted an “absolute immunity” claim in responding to such subpoenas, meaning senior Bush aides were directed not to even appear when subpoenaed.

Obama and his legal advisors have rejected that view as an overbroad reading of the president’s authority, but they have yet to fully formulate their own response to the question.

Conyers had demanded that Rove comply with the subpoena by next Tuesday, Feb. 2, but the deadline has been extended to Feb. 23, according to sources close to the issue.

I realize at least one of you was planning your birthday around Rove’s testimony (though it’s not yet clear whether it’ll be public or not), but I think this is a good thing.

I expect Obama to reject at least some parts of what Rove is trying to do here–certainly the idea that former senior aides have absolute immunity from showing up before Congress if not the notion of absolute immunity in general (to say nothing of former aides of former Presidents). Pushing the deadline out gives Obama several additional ways to respond here. They can respond through their filing on the suit, which is due on February 18. And, presumably before this deadline, Dawn Johnsen will also be installed at OLC with the option to pull Steven Bradbury’s opinion authorizing "absolute immunity" for former aides, which (after all) literally contradicts the logic Rehnquist used to justify absolute immunity in the first place.

Bush’s legal team keeps pretending there will be some point at which Obama is forced to negotiate with the Bush Administration on this. And that’s probably true for Miers’ testimony. But given the sketchiness surrounding Bush’s claim to privilege for Rove, that may not be true at all for Turdblossom.

Matt Cooper Predicts Bad Things for His Buddy Karl Rove

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Image by Twolf

Image by Twolf

It was bound to happen. Matt Cooper, to whom Karl Rove leaked Valerie Wilson’s identity, is now reporting on Karl Rove again (at his new digs over at TPM). Better yet, Matt suggests Turdblossom may have miscalculated in his efforts to avoid testifying before the House Judiciary Committee.

I spoke with a Washington lawyer who has dealt with many presidential privilege issues and he (or is it she?) raised some interesting questions and offered a prediction.

The first interesting point the person raised is that Rove’s attorney, Robert Luskin, may have made a tactical mistake in writing to White House Counsel Greg Craig for an opinion. "Be careful what you ask for," the source said. After all, Craig could come up with a rationale for Rove testifying. And why rush to Craig at all when you might prevail in the courts? True, the courts have been loathe to offer hard and fast rules in these cases but it would seem worth pursuing such a legal avenue before going to the Democratic White House for solace. My source predicted that in the end there probably will be some kind of accomodation with Rove answering questions on some topics and not on others rather than a showdown that drags on endlessly. Interestingly, the source thought Obama’s executive order on presidential records differed enough from the question of testimony that it probably would not be determinative in the end. [my emphasis]

See? I’m not crazy!! There’s a difference between Executive Prvilege and Absolute Immunity (otherwise known as the claim that you can just blow off Congress). And Rove may not be playing this one correctly, not least because Greg Craig has a great deal of leeway in how he responds to Rove.

Jeebus, I hope Matt’s source is right that Luskin screwed up tactically. Because, thus far, Luskin has been really lucky (and, I have to begrudgingly admit, good) with his defense of Rove.

At some point the luck has to start turning against Turdblossom, doesn’t it?

Rove's "Renewed" Privilege Assertion: Is It Absolute Immunity or Executive Privilege?

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Thanks to MadDog for finding someone besides Gloria Borger discussing Bush’s recent letter reasserting his support for Rove to blow off Congress.

It’s unclear, from the reporting, whether the letter reasserts absolute immunity or asserts, for the first time, old-fashioned executive privilege regarding the information Conyers subpoenaed Rove to testify about. The WSJ speaks clearly in terms of "renewed assertion," suggesting Bush is making the same argument that he did earlier for Rove, that presidential aides can simply blow off Congressional subpoenas pertaining to their official duties. 

Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance.

But in an interview with the WaPo, Luskin clearly discusses executive privilege.

Robert D. Luskin, an attorney for Rove, said his client will "abide by a final decision from the courts." Luskin noted that Bush, in a letter to Rove, recently reasserted executive privilege.

"It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."

I wouldn’t make too much of that, though, because Luskin has very consistently tried to normalize the radical assertion of absolute immunity Rove relied on last year by talking in more general terms of privilege.

So thus far, we know Rove has a new piece of paper, but we don’t know what is on that paper.

And that could make all the difference between whether we get Rove testimony within hours of Holder taking over at DOJ, or whether Rove’s testimony gets litigated for some time going forward. Here’s why (for background read this post and this post). What follows is my NAL description–those of you with real credentials here, feel free to correct me where I screw this up.

Executive privilege is a constitutionally recognized privilege for the President to shield certain topics from the scrutiny of the other branches, the idea being that Courts or Congress should not be able to snoop into the Executive’s doings in matters that they have no constitutionally recognized business snooping in. Read more →

Conyers to Turdblossom: "Time's Up!!"

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Via email:

Today, House Judiciary Committee Chairman John Conyers, Jr. issued a subpoena to Karl Rove requiring him to testify regarding his role in the Bush Administration’s politicization of the Department of Justice, including the US Attorney firings and the prosecution of former Alabama Governor Don Siegelman.  The subpoena was issued pursuant to authority granted in H.R. 5 (111th Congress), and calls for Mr. Rove to appear at deposition on Monday, February 2, 2009.  Mr. Rove has previously refused to appear in response to a Judiciary Committee subpoena, claiming that even former presidential advisers cannot be compelled to testify before Congress.  That “absolute immunity” position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as “completely misguided.”

"I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” said Mr. Conyers.  Noting that the change in administration may impact the legal arguments available to Mr. Rove in this long-running dispute, Mr. Conyers added “Change has come to Washington, and I hope Karl Rove is ready for it.  After two years of stonewalling, it’s time for him to talk." 

Tee hee hee! Here’s the subpoena.

February 2. You think maybe we’ll have an Attorney General by then?

Obama's Executive Privilege Order and the House Judiciary Committee Lawsuit

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I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees Read more →

Bush Opts for Continued Protection Over Payback

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When Cheney’s people wanted to shore up the cover story for Dick Cheney’s involvement in leaking Valerie Plame’s identity, they went to Michael Isikoff. So I guess it’s not surprising that Isikoff would be the outlet for conservative fury over the news that Bush did not pardon Scooter Libby.

In a move that has keenly disappointed some of his strongest conservative allies, President Bush has decided not to pardon Vice President Dick Cheney’s former chief of staff, I. Lewis "Scooter" Libby, for his 2007 conviction in the CIA leak case, two White House officials said Monday.

[snip]

But the decision not to pardon Libby stunned some longtime Bush backers who had been quietly making the case for the former vice presidential aide in recent weeks. A number of Libby’s allies had raised the issue with White House officials, arguing that as a loyal aide who played a key role in shaping Bush’s foreign policy during the president’s first term, including the decision to invade Iraq, Libby deserved to have the stain of his felony conviction erased from the record. In the only public sign of the lobbying campaign, The Wall Street Journal published an editorial strongly urging Libby’s pardon.

"I’m flabbergasted," said one influential Republican activist, who had raised the issue with White House aides, but who asked not to be identified criticizing the president. Ambassador Richard Carlson, the vice chairman of the Foundation for Defense of Democracies, a neo-conservative think tank, added that he too was "shocked" at Bush’s denial of a pardon for Libby.

"George Bush has always prided himself on doing the right thing regardless of the polls or the pundits," Carlson said. "Now he is leaving office with a shameful cloud over his head." Carlson, who was among those who recently weighed in on behalf of Libby with the White House and previously raised money for his legal defense fund, said that Libby had taken a "knife in the heart" from critics of the president and deserved to have his conviction erased.

Apparently, none of these conservative wailers understand that pardoning Libby would negate Libby’s ability to invoke the Fifth Amendment if, say, John Conyers ever held a hearing on George Bush’s role in leaking Valerie Plame’s identity. And so Scooter Libby will remain a felon–at least until the time when another Republican lands in the White House and pardons him.

Read more →

BushCo: You Can't Have Scooter's and Turdblossom's Emails…

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…and the Court can’t make us give them to you, either (h/t mc).

The Bush administration is aggressively pushing back against a federal court order instructing the most important offices in the White House to preserve all of their e-mail.

In court papers late Friday, the administration argued that a federal court has no authority to impose such a requirement on the offices of President Bush, Vice President Cheney and the National Security Council. The administration argued that none of the court’s orders can apply to parts of the White House subject to the Presidential Records Act.

The issue arose Wednesday after U.S. District Judge Henry H. Kennedy Jr. directed the White House to issue a notice to all employees to surrender any e-mails from March 2003 to October 2005. Justice Department lawyers argued that the order applied only to White House offices subject to the Federal Records Act, prompting a quick response from U.S. Magistrate Judge John M. Facciola. Facciola said that all White House offices must be searched for e-mail. [my emphasis]

We’re seriously in run-out-the-clock time here. BushCo is effectively sticking its fingers in its ears and singing "lalalala-you-can’t-make-me" and assuming Justice Kennedy will either back them up–or not get around to making them–before Tuesday. 

Update: Here’s the appeal. There’s a lot worth reading in it. But for now, you will be amused to know that they’re relying on what might politely be called the "Poppy precedent."

The bounds of the Court’s jurisdiction are restricted, too, by the limitations on review of the recordkeeping practices of components governed by the PRA. The PRA accords the components governed by the PRA “virtually complete control” over their records, and “neither the Archivist, nor the Congress has the authority to veto” the EOP PRA component’s disposal decisions, nor may the courts. Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991).

I’m sure they weren’t planning on making this Poppy precedent their last defense when they deleted all of Scooter’s and Turdblossom’s emails in 2005. Honest.

Two more documents. This statement, which explains where they’re complying. And this declaration from Stephen Everett, the CIO of EOP, explaining that statement.

Update: What BushCo appears to be doing is to retreating to an approch they tried earlier in this case: to argue exclusively with the CREW arguments, which are more limited, and not the NSA arguments. Read more →

Oh, Now They're Trying to Insist on Their Responsibility to Archive

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It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency Read more →

The Little Bomblet for Turdblossom in the New Rules

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Kagro has been tracking the passage of the new House rules package over at his new digs.

As he described earlier, John Conyers stuck something in the new rules that will allow the House Judiciary Committee to continue its lawsuit against Harriet Miers and Bolten to get their testimony in the US Attorney scandal.

One nice goody buried in the new House Rules package: the House will authorize the Judiciary Committee to continue its lawsuit seeking to enforce its subpoenas and contempt of Congress citations against Bush White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers.

Technically, Miers and Bolten were in contempt of the 110th Congress. But with its adjournment, the 110th Congress no longer exists, so there’s nothing to be in contempt of, nor any plaintiff in the lawsuit. The courts had indicated that this might give them cause to moot the whole case and drop it. But the Rules package specifically authorizes the Judiciary Committee in the new 111th Congress to continue the suit. And we had earlier word that the 111th was considering reissuing those subpoenas.

And, as Kagro now points out (now that the rules have passed), there’s a little bomblet in there specific to Rove.

There’s one more juicy nugget in the rules package that just passed. Regarding the Judiciary Committe’s power to continue its suit against Miers and Bolten.

From Majority Leader Steny Hoyer’s fact sheet (PDF):

In addition, it authorizes the Judiciary Committee and General Counsel to add as a party to the lawsuit any individual subpoenaed by the Committee in the 110th Congress who failed to comply.

Who else was subpoenaed by the Judiciary Committee in the 110th Congress and failed to comply?

Karl Rove.

And Michael Mukasey.

Nice going, Chairman Conyers and Speaker Pelosi.

In other words, Rove–and Michael Mukasey, who refused to turn over documents particularly relating to the Siegelman prosecution–is about to get added to HJC’s lawsuit forcing him to testify before HJC in the 111th Congress.

Gold Bars Luskin: Turdblossom Is Wearing Nothing But a Fig Leaf

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rovefigsm.jpg

(Graphic by twolf)

There’s a few things really funny (as in smells funny, not funny ha ha) about Rove and Luskin’s identical attacks on Obama’s decision to comply with Fitz’s request that he not reveal the contacts between his transition team and Blago until next Monday.

Here’s Rove:

Rove: And it’s not gonna be a couple of days, last Thursday he said they’d, quote, do it in a few days, now we’re being told it’ll be next week. 

Colmes: That’s because of the prosecutor, Karl, the prosecutor has asked Obama to wait a week.

Rove: Again, first of all, the prosecutor can ask; the President-elect ought to decide what is in his best interest, and saying clearly and candidly to the American people like he should have said ten days ago, "Of course we’re going to be talking to him about who my replacement should be, but if any suggestion was made of a quid pro quo, my people would have said no right from the get-go." I just don’t buy this that the Obama transition operation is resisting giving out this information only because they’re being held back by the prosecutor’s office.

And here’s Luskin.

Robert Luskin, a Washington white-collar defense lawyer who knows Mr. Fitzgerald well, said he doesn’t doubt the prosecutor would have asked that Obama officials keep quiet until his investigation is further along. That is to prevent witnesses from tailoring their stories to what they learn others are saying. But, he said, Mr. Obama and his aides don’t have to comply. They are using the prosecutor as a "fig leaf" to avoid answering questions just now, Mr. Luskin said. They could just as easily have decided that assuring the public about their actions is more important than acceding to the prosecutor’s request.

The Investigations that Weren’t

One really minor gripe is this. The Obama team has–apparently–done an investigation and turned the results over to Fitz. Not a radical thought, I know. But consider:

Remember the Abramoff scandal–the one that should have shown Abramoff sending emails via Susan Ralston’s secret email to Karl Rove? The White House claimed to do an investigation into Abramoff’s ties to the White House. Only, they somehow missed the large number of visits (not to mention close contacts) Abramoff had with Rove and his buddies.  

And how about the Plame outing? Read more →