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Bush Did NOT Invoke Executive Privilege for Rove

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So far today, the following smart lefty outlets have claimed that Rove blew of HJC today based on executive privilege.

TPMM:

Karl Rove stood by his claim last week that he wouldn’t be showing up to testify about anything to the House Judiciary Subcommittee on Commercial and Administrative Law, despite its subpoena, on the grounds of executive privilege.

ThinkProgress:

Toady, Karl Rove was set to appear under subpoena before the House Judiciary Committee to discuss the politicization of the Justice Department. Yesterday, Rove’s lawyer wrote a letter declaring Rove would not testify, citing executive privilege:

CREW

House Committee to Karl Rove: You have no claim of executive privilege

And here are some less smart traditional media outlets:

AP:

The White House has cited executive privilege, arguing that internal administration communications are confidential and that Congress cannot compel officials to testify.

CNN:

Rove’s lawyer asserted that Rove was "immune" from the subpoena the committee had issued, arguing that the committee could not compel him to testify due to "executive privilege."

Now, I know it’s kind of confusing. Robert Luskin, after all, did mention executive privilege in this letter.

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

Note the date of the letter: July 1, a full week before Fred Fielding wrote his letter to Luskin telling him Rove didn’t have to show up. So Luskin used the phrase Executive Privilege, sure, but he used it well before the White House actually contacted him officially about Rove’s appearance. So how could Luskin’s reference to executive privilege have any validity, if he hadn’t even spoken with the White House before he used it?

Now look at the letter Fred wrote Luskin and the letter Luskin sent to HJC. Go ahead look closely. Do you see the words "executive privilege" anywhere in either of those two letters?

It’s not there.

For that matter, check out the memo Steven Bradbury wrote last year rationalizing why Harriet Miers didn’t have to show up–which is what Fielding cites to justify Rove’s absence today. Look closely. See any mention of executive privilege in that memo? Nuh uh. It’s not in there, either.

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White House Confirms: Rove’s “Official Duties” Included Witchhunts of Democrats

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Surprise surprise. Rove was too chicken to give testimony under oath to show up before HJC today. That’s not surprising. What I find surprising (well, not really) are the thin excuses that Republicans are coming up with to excuse Turdblossom from obeying a subpoena.

First, according to the statement Sanchez put out, Fred Fielding did intervene to give a last minute reprieve to Karl–though still without invoking executive privilege.

First, the claims have not been properly asserted here. The Subcommittee has not received a written statement directly from the President, let alone anyone at the White House on the President’s behalf, asserting Executive Privilege, or claiming that Mr. Rove is immune in this instance from testifying before us. Nor is any member of the White House here today to raise those claims on behalf of the President. The most recent letter from Mr. Rove’s lawyer simply relies on a July 9, 2008 letter to him from the current White House counsel directing that Mr. Rove should disobey the subpoena and refuse to appear at this hearing.

The July 9, 2008 letter from White House Counsel Fred Fielding claims that Mr. Rove “is constitutionally immune from compelled congressional testimony about matters that arose during his or her tenure as a presidential aide and that relate to his or her official duties.”2

I’ll take that as confirmation from Nixon’s former lawyer that Karl Rove’s official duties included intervening in criminal investigations and trials to make sure popular Democrats’ careers were ruined.

Frankly, I think that letter, dated July 9, may have arrived very late on yesterday. Sanchez did not mention it in her spoken statement today, nor did Ranking Subcommittee Member Chris Cannon.

Instead of referring to Fielding’s invocation of absolute immunity (but not, apparently, executive privilege itself), Cannon invoked Rove’s busy summer travel schedule. He asked Sanchez whether she knew that Rove had a long-scheduled overseas trip scheduled for today, and complained that Congress had scheduled the hearing to be convenient to the Subcommittee, not to Rove.

So apparently, it’s going to be absolute immunity and the summer vacation privilege that saves poor cowardly Karl from having to testify, under oath, about things he’s all-too-happy to talk about on TV.

No word, thus far, on how this all jibes with the Attorney General’s assertion yesterday that one avenue to find out about Karl’s involvement in the Siegelman prosecution would be to hold a hearing.

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Mukasey to SJC: Investigation of Rove’s Involvement in Siegelman Should Take Place … Somewhere Else

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There has been some misunderstanding about Karl Rove’s refusal to show up to testify before HJC tomorrow. While Luskin referred to executive privilege to justify Rove’s refusal to appear tomorrow,

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

And though Luskin parses wildly to pretend that the subject of this hearing–Siegelman’s prosecution and other selective prosecutions–is identical to the subject on which Rove was subpoenaed to testify before the Senate Judiciary Committee and for which Bush did invoke executive privilege–the firing of the nine US Attorneys.

Mr. Rove is simply not free to accede to the Committee’s view and take a position inconsistent with that asserted by the White House in the litigation [about the subpoenas regarding the US purge].

No one has ever asserted that Bush was invoking executive privilege with regards to this appearance by Rove. In fact, Rove himself, back in May, not only admitted that Bush had not yet done so but implied that Bush would have to do so in this case (and, he suggested, Bush would "probably" do so–though that hasn’t happened yet).

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. [my emphasis]

But no one has asserted that Bush has invoked executive privilege in this case. The sole legal rationale Rove has given for not showing up, even in the absence of executive privilege being invoked, is a memo that Steven Bradbury wrote that may or may not apply to this case. For example, that memo only applies if Rove is willing to claim that politicizing prosecutions was part of his official duties as Senior Advisor to Bush. Suffice it to say that not even Mr. Unitary Executive thought that memo was sufficient basis for blowing off HJC, and that on a topic (rationalizing torture) that probably would be considered among the official duties of OVP’s counsel in this Administration.

As of right now, the White House has declined to give Rove real legal protections for blowing off HJC tomorrow. Read more →

Make Bush Invoke Executive Privilege for Rove

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Kagro X wrote a post stating that Karl Rove is "not honoring his subpoena" from House Judiciary Committee. That’s not quite an accurate statement, yet–it won’t be until Rove actually does not show up when he was subpoenaed to testify, on Thursday, July 10.

I raise the distinction because, thus far, Rove’s refusal to testify is based solely on his attorney Robert Luskin’s efforts to pretend that the executive privilege Bush invoked with regards to the US Attorney purge extends to questions of politicized prosecution.

As I have indicated to you in each of my letters, Mr. Rove does not assert any personal privileges in response to the subpoena. However, as a former Special Advisor to the President of the United States, he remains obligated to assert privileges held by the President. As you are, of course, well aware, the precise question that we have discussed at length in our correspondence–whether a former Senior Advisor to thet President is required to appear before a Committee of Congress to answer questions concerning the alleged politicization of the Department of Justice–is the subject of a lawsuit in the United States District Court for the District of Columbia.

Yet that invocation of executive privilege was very specific. It relied upon a Paul Clement opinion that very specifically refers to the "dismissal and replacement of U.S. Attorneys" and then goes on to claim that that deliberations about the hiring and firing of USAs "necessarily relate to the potential exercise by the President of an authority assigned to him alone." The claim is specious on its face–after all, Congress has specific authority in the Constitution to legislate the selection of inferior officers; they had passed and were considering passing laws pertaining to the selection of interim USAs; and therefore they had a clear and recognized legislative interest in, for example, whether Bush tried to appoint Tim Griffin using a PATRIOT appointment so as to avoid the Senate approval process. But putting aside Clement’s transparently false argument, everything else he argues is premised on the exclusivity of the hiring and firing authority to the President.

But prosecution of federal crimes is not exclusive to the President; it’s an issue that Congress has clear legislative authority over. So DOJ would have to make very different analysis to find that Rove didn’t have to testify about his role in politicized prosecutions. Read more →

Scott McClellan Testimony: Rove Is a Liar and Cheney an Oil-Hungry War-Monger

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I confess to being underwhelmed with the work HJC did with Scott McClellan’s appearance before the committee today. I’ll do a post later (once I’ve recovered from a terrible day for Democracy) on what I think was missed. But I’ll start with the positive–what I consider the highlights of the hearing.

Conyers started the hearing right, IMO, by introducing the meat-grinder note, showing that as Cheney was pressuring Bush to have Libby exonerated, Cheney was thinking of Bush’s order that Libby "put his neck in the meat-grinder." Conyers also made the case–which I made here–that Mukasey should turn over the reports from the Bush and Cheney interviews (doing anything else is really cooperating the ongoing attempts to cover-up the Libby case). Of course, HJC could have made a more compelling case that it needs the reports had they don’t a better job of explaining why the reports would be the only way to answer urgent questions about the leaks. But, aside from Chairman Conyers, no one on the committee made a concerted effort to present the abundant evidence that Cheney and Bush were involved in the leak of Plame’s identity. For example, when Jerrold Nadler asked McClellan whether Bush and Cheney had any knowledge of Libby’s involvement in the leak, he didn’t introduce that evidence that Cheney, at least, did, and Bush may have as well.

NADLER: Do you know when the president gave instruction to cover Libby’s rear end, did he know about Libby’s involvement? Scott didn’t know that.

Perhaps the best use of the hearing time came from (unsurprisingly–he usually excels in hearings) Artur Davis. Davis, who is from Don Siegelman’s state, got McClellan to admit that Rove not only would–but has–lied to protect himself from legal jeopardy and political embarrassment.

Artur Davis Let me circle around a person, Rove. You stated Rove encouraged you to repeat a lie. Indicated you’ve known him for some time. Committee extended invitation to Rove. I’m willing to talk, only if no oath, no cameras, no notes. Based on what you know does it surprise you that Rove wants limitations on circumstances.

SM An effort to stonewall the whole process.

Davis Would you trust Rove to tell the truth if not under oath.

SM Can’t say I would

Davis Not under oath.

SM I would hope he would. I’d have concerns about that.

Davis Did testify before GJ under oath. You don’t believe he told the complete truth to the GJ.

SM I don’t know.

Davis Karl only concerned about protecting himself from possible legal action. Do you believe he is capable of lying to protect himself from legal jeopardy.

SM He certainly lied to me.

Davis Do you believe he is capable of lying to protect himself from political embarrassment.

SM he did in my situation, so the answer is yes. [my emphasis]

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Scottie and Condi and the Niger Intelligence

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My posts on Scottie McC’s book have, thus far, treated issues closely connected to the CIA Leak investigation (well, except for the post in which he calls cracking down on deadbeat dads "trivial").

In this post, I want to look at how he deals with the underlying issue–the Niger intelligence and the White House’s response to it. I find his treatment particularly curious. As many of you have pointed out, Scottie McC is fairly critical of Condi Rice.

Over time, I was struck by how deft she is at protecting her reputation. No matter what went wrong, she was somehow able to keep her hands clean, even when the problems related to matters under her direct purview, including the WMD rationale for war in Iraq, the decision to invade Iraq, the sixteen words in the State of the Union address, and postwar planning and implementation of the strategy of Iraq.

But his book, in some key ways, helps her protect her reputation. Now, most of this is–I think–ignorance on the part of Scottie McC, not any attempt to put Condi in a good light. Nevertheless, it is rather telling that he seems to be unaware of some of the key roles that Condi played in precisely these intelligence issues. Which is another way of saying he really misses some of the tensions between NSC and CIA the week of the leak–and therefore some of the underlying skirmishes that contributed to Plame’s outing.

For this post, I’m going to do a timeline–both of the events he covers, and the events he misses.

June 8, 2003: Condi gets beat up by George Stephanopoulos

Scottie McC does not mention this appearance at all, gliding directly from Kristof’s column to Pincus’, and ignoring Condi’s appearance as the decisive factor in leading Joe Wilson to publish his op-ed and, apparently, in getting Bush to tell Libby he was interested in the Kristof allegations:

In early June, while making inquiries about what Kristof wrote, Pincus had contacted Cathie Martin, who oversaw the vice president’s communications office. Martin went to Scooter Libby to discuss what Pincus was sniffing around about. The vice president and Libby were quietly stepping up their efforts to counter the allegations of the anonymous envoy to Niger, and Pincus’s story was one opportunity for them to do just that.

[snip]

In this atmosphere of growing controversy–and with no WMD in sight anywhere in Iraq–Kristof’s anonymous source, Joe Wilson, decided to go public.

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Scottie McC’s Chronology: October 4

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I told you I was going to get into the guts of Scottie McC’s book. So far, I’ve shown that:

  • Scottie McC hides the date when the White House learned of an investigation and ignores details that seemed to implicate Rove, thereby making Karl’s interventions look less suspicious
  • Scottie McC falsely suggests Bush’s comments on Rove weren’t a reaction to the 1X2X6 story
  • Someone appears to have told Condi to exonerate Rove–and Scottie McC doesn’t think he was the one who did so
  • While Scottie McC’s representation of what he briefed on September 29 is mostly accurate, there are a few details that he still appears to be hiding, notably his refusal to say that Rove didn’t know of Plame’s identity, even though Rove had just said as much to him

All of this suggests that there were big reasons to doubt Rove’s claims that he wasn’t involved. And, given Scottie McC’s refusal to state that Rove didn’t know about Valerie Wilson’s identity when he spoke with Novak, it seems likely Scottie McC may have doubted those claims more than he lets on in his book.

So let’s turn to his treatment of Libby.

For some understandable narrative reasons, Scottie McC interrupts his treatment of the events of fall 2003 right in the middle. He ends chapter 10 with his September 29 mid-day briefing and then takes a full chapter to discuss events relating to Iraq leading all the way up to fall 2004. Then, in chapter 12, he returns to the CIA leak investigation, starting with DOJ’s notification on the evening of September 29 that it would conduct an investigation.

I understand the narrative logic behind such a split, with chapter 10 treating the pre-investigation events and chapter 12 treating the investigation events. But the effect is to heighten the false impression that the White House did not know of the investigation during the earlier events. It also creates an equally false impression that Scottie McC operated by different rules during the events that appear in chapter 10 and those that appear in chapter 12.

This has a dramatic effect in his treatment of his refusal to exonerate Scooter Libby.

Scottie pretends that he was first asked about Libby’s involvement on October 1–the morning after the White House’s employees (as distinct from Alberto Gonzales) received official notice of the investigation.

The next morning’s gaggle back at the White House signaled that the press was now turning toward a new rumored suspect in the leak, the vice president’s chief of staff–Scooter Libby.

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Scottie McC’s Chronology: September 29

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In this post, I showed that Scottie McC should have suspected that Rove was lying at least by September 27, when it would have become clear that Rove had already been less than forthcoming about his conversations with Bob Novak and when it should have become clear that, after finding out the identities of the 2 SAOs alleged to have leaked Valerie Wilson’s identity to 6 journalists, Mike Allen immediately called Rove for comment.

Which brings us to September 29, the day when Bush told Scottie McC that Rove "didn’t do it."

Before I start, let me point out that Scottie McC presents several events that happened on September 29, most of which he doesn’t place in chronology within that day. These are (in the order I’m guessing they occurred):

"That morning the Washington Post was reporting that the Justice Department had opened a criminal investigation into the disclosure of Plame’s identity."

[Between 7:00 and 7:30 AM] Bush told Scottie that "Karl didn’t do it … He told me he didn’t do it."

"Andy [Card] replied that he had not heard anything new [about the investigation], and as far as he knew we had yet to hear from the Justice Department."

[simultaneous with the Bush-Card-McClellan meeting, but necessarily viewed afterwards] "Joe Wilson, appearing on ABC’s Good Morning America, was backing away from his previous assertion that Rove had been responsible for leaking his wife’s identity. However, Wilson also asserted that he believed Rove ‘at a minimum condoned the leak.’"

"I checked with Rove that day to confirm that he’d neither leaked nor condoned leaking Plame’s identity. He assured me that was correct."

Two things about this chronology. First, by putting the GMA Wilson comments and the Rove question before his account of the Bush-Card-McClellan meeting as he does in his book, Scottie McC suggests he had one more reason to believe Bush when he told him Rove hadn’t leaked Plame’s identity–that even Joe Wilson was backing off the allegation. But since GMA airs at 7:00, precisely when Scottie McC says he was meeting with Bush, it’s unlikely he saw Wilson’s comments until after both the Bush-Card-McClellan meeting and the senior staff meeting (which took place immediately afterwards). We know, however, that Scottie McC saw the GMA comments before his 12:18 press briefing, because he mentions Wilson in the briefing. That’s just one small detail that might make Scottie McC’s acceptance of Bush’s statement more credible.

Also, note how Scottie McC states that the WaPo had reported "that morning" that DOJ had opened a criminal investigation. As I pointed out in my last post, that’s just meaningless. Read more →

Scottie McC’s Chronology: September 27

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I said yesterday that Scottie McC was still protecting Bush–either deliberately or out of blind faith. One of the areas where that’s apparent is in his discussion of efforts to have both Rove and Libby exonerated in fall 2003. Scottie McC presents some significant new details about discussions of the leak within the White House just as DOJ started the CIA leak investigation. But he presents a chronology that downplays the degree to which those White House discussions were a reaction to public news that the DOJ had already started a probe.

Take a look at this chronology–showing the known events in the middle column, and Scottie McC’s details in the right-hand column.

Date

Events

Scottie’s Events

September 16

CIA requests investigation

Scottie first asks Rove about leak:
“You weren’t one of Novak’s sources, right?”
“Right”

Russell Mokhiber asks about Rove

September 26

DOJ officially launches investigation

  
 

NBC leaks news of investigation

  

September 27

  

Scottie asks Rove about leak

September 28

1X2X6 Dana Priest and Mike Allen article

  

September 29

  

Bush tells Scottie Rove didn’t leak (7 AM)
   

Scottie asks Rove whether he condoned leak
   

“That morning” the WaPo reports that DOJ opened an investigation
 

Scottie emphasizes the White House has received no official warning and denies Rove’s involvement, mentioning Bush

  
 

(Evening) Ashcroft informs Gonzales who informs Andy Card to retain materials

  

What’s most important about Scottie McC’s chronology is that he never admits that the White House learned and responded to leaked news of the investigation that appeared on September 26 and instead suggested they only responded to news reports and–ultimately–the belated official notice DOJ gave the White House on September 29. Here’s the description Scottie McC gives of that timing:

On September 16, the CIA informed the Justice Department about its completed investigation into the disclosure of Valerie Plame’s name and undercover status and requested that the FBI "initiate an investigation of this matter." Justice advised the CIA on September 29, 2003, that its counterespionage section supported the request for an investigation. The clear implicationwas that there was good reason to believe a crime had been committed in the leaking of Plame’s name. The White House would be informed about the Justice Department’s decision later that evening.

By starting his chronology this way, Scottie McC hides the fact that NBC first reported the DOJ investigation on Friday evening, September 26, three days before the White House officially learned of the investigation.

September 27

That’s particularly important given one of the new details Scottie McC’s narrative reveals–that both he and Claire Buchan learned from Rove on September 27 that Rove had spoken with Novak during leak week. Scottie McC found out after Mike Allen emailed Rove for comment on the famous 1X2X6 story [now behind the firewall].

Rove got in touch with my trusted deputy Claire Buchan, letting her know he’d received an email inquiry from Mike for the story.

[snip]

Claire spoke with Rove before I returned to the White House in the staff vans. I arrived back at my office sometime after 1:00 P.M., and a short time later got the rundown from her.

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Fitzgerald to Conyers: “Okay, Now I’m Ready to Talk”

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Thanks to BayStateLibrul for pointing out this provocative comment from Patrick Fitzgerald after yesterday’s Rezko verdict:

The White House Rasputin, Karl "The Architect" Rove, also was mentioned in the trial, as was former House Speaker Dennis "Don’t Ask Me About My Land Deal" Hastert, alleged to have been part of an effort by the bipartisan Illinois Combine to get rid of Fitzgerald. To demonstrate their kinship, Cellini and Rezko flew out to Washington on a play date and visited a White House reception with President Bush, where Kjellander joined them.

Later in the Rezko trial, two witnesses said that Rezko told them not to worry about the criminal investigation, because the Republicans—Rove and Kjellander—would get rid of Fitzgerald. Hastert would install a friendly federal puppy who wouldn’t bother the Combine, according to the testimony. "The federal prosecutor will no longer be the same federal prosecutor," testified Elie Maloof, a Rezko associate who is now a cooperating witness.

And a state pension board lawyer who has already pleaded guilty told grand jurors that Cellini told him "Bob Kjellander’s job is to take care of the U.S. attorney."

The Illinois Republican Party holds its own convention this week in Decatur. The party establishment, which has long been cozy with the Daley Democrats at City Hall, has done little or nothing to rid the Illinois GOP of Kjellander and Cellini influence.

"If I owe a response [about the putsch to remove him from his job], I owe it to Congress, first," Fitzgerald said when asked about all this after the verdict. [my emphasis]

Well, now that you mention it, Fitz, I seem to recall that Congress did ask you questions about this issue–questions that you obliquely passed on because of an ongoing criminal trial.

But that’s not the version of the "what if you got fired" question that I find most interesting. Rather, there’s a question that asks specifically if Fitzgerald became aware of efforts to fire him during the course of the CIA Leak investigation. Fizgerald refuses to answer … because of the ongoing Rezko case.

[snip]

During the CIA leak investigation, were you aware of any conversations that you might be asked to resign? If so please describe all such conversations, including the substance of the conversations, when they occurred, and the names of those who participated.

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