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 →

First DOJ IG Report on Politicization

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Is here.

It shows that not just Monica Goodling, but Mike Elston and Bill Mercer and others at DOJ "crossed the line" into illegal behavior, using political affiliation in the hiring for a summer intern and AG’s Honors programs.

I’ll update as I read.

The report names Robert Coughlin–of the Abramoff corruption ring–as one of the people who may have used political affiliation in hiring–but the report ultimately does not conclude that he did.

Three career employees told us they were concerned that on one occasion Deputy Chief of Staff Robert Coughlin, a political official on the hiring committee, may have taken into account candidates’ political or ideological affiliations. One career employee wondered whether Coughlin rejected one highly qualified candidate because of the candidate’s liberal affiliations. Two other career employees wondered whether Coughlin voted to accept a less qualified candidate because of the candidate’s conservative and Republican Party affiliations. The candidate with liberal affiliations was rated highly by the career employees who interviewed him, but he did not receive an offer. Conversely, the candidate with conservative and Republican Party affiliations was not rated highly by the career employees who interviewed him yet received an offer of employment.

The career employees also told us that when they questioned Coughlin about his ranking of candidates during the group meeting in which the candidates were ranked, Coughlin stated that he was basing his recommendation on his reactions to the candidates’ interview demeanor and interview skills.

In our interview of him, Coughlin told us he never considered political or ideological affiliations in evaluating Honors Programcandidates. While Coughlin said he did not recall any details concerning the specific candidate with liberal affiliations, he recalled that he recommended the candidate with conservative affiliations because the candidate had received a strong recommendation from a previous internship with the Criminal Division and not because of the
candidate’s ideological affiliations.

We reviewed the two candidates’ applications and determined both candidates had been ranked as having strong credentials, such as federal appellate clerkships or high grades that indicated the candidates were qualified. In addition, Coughlin’s stated reasons to his colleagues and to us for his decisions – the strength of the candidates’ performances in interviews and high recommendations from a previous internship with the Department – can be appropriate bases to choose between two otherwise qualified candidates. Read more →

Why Might Schlozman Have Been Referred to a Grand Jury

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While I’m waiting to hear from the next President of the United States, I thought I’d make some suggestions about what Brad "Shorter" Schlozman said that got him a perjury referral to the grand jury for. In this post, I laid out several things Schlozman said when he testified before the Senate which are probably truth-challenged.

The ACORN Investigation Is/Is Not National
You’ll recall that Brad Schlozman indicted 4 former ACORN workers (one of whose name he got wrong) for submitting fraudulent voter reg information. Well, he strongly suggested that the indictments were not part of a national investigation (a few Senators hammered him on this point–suggesting that, since the investigation was not national, it shouldn’t have been filed before the election). But, at the same time, Schlozman indicated over and over again that the investigation is national.

There needs to be follow-up on this. Did Schlozman and some other flunkies dream up a national campaign against ACORN based on the 4 flimsy indictments in MO?

[snip]

Schlozman Claims He Didn’t Know of MO Job Until It Was Publicized
If there is one claim, of many, that I think Schlozman will eventually get busted on, I suspect it’s this one (which is remarkably similar to Rachel Paulose’s claims, I might add). Schlozman argued he didn’t apply–or know about–the potential opening in WD MO (Todd Graves’ old job) until it was published. Only once it was, Schlozman tells it, did he apply for the job.

As Schumer elicited, it’s not like Schlozman should have thought he was qualified for the job. He had never prosecuted a case, neither civil nor criminal at that point.

But he applied for the job and–only because they needed someone within 2 weeks, Schlozman said–he was hired.

Schlozman Claims He Didn’t Tell Monica about the MN Voting Rights Case
You’ll recall that (as perhaps first reported here), there was a voting rights issue that may be behind the planned firing of Thomas Heffelfinger. The Republican SOS wanted to prevent Native Americans from using tribal IDs to vote. And an AUSA in Heffelfinger’s office wanted to make sure they could do so.

For the record, Schlozman claims he didnt’ spike the investigation. Rather, he told the AUSA to refer the investigation to the SOS, rather than investigate allegations at the county level. You know, the same Republican SOS who ruled against tribal IDs in the first place? Yeah, that investigation is going far.

Read more →

Bush’s DOJ: Okay, Maybe We Won’t Imprison Siegelman for 30 Years

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Isn’t that nice? The Siegelman prosecutors have decided maybe it isn’t so important to jail Don Siegelman for 30 years after all.

Federal prosecutors are no longer seeking stiffer prison sentences for former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

Prosecutors filed a motion this week with the 11th U.S. Circuit Court of Appeals asking that their appeals of the sentences be dropped. Their appeal had called for a longer prison term than Siegelman’s more than seven-year sentence and Scrushy’s almost seven-year sentence.

The latest filing does not say why prosecutors want to drop their appeal.

I can’t imagine why, when everyone in the country is close to concluding that the entire prosecution was a big political witch hunt, they don’t want to go argue for more prison time for Siegelman. Can you?

Perhaps this means we’ll see prosecutors making a motion in a few weeks saying, "golly, maybe we didn’t really want to prosecute Siegelman after all."

Fieger Acquitted of all Charges

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As several of you have pointed out, Geoffrey Fieger and his law partner, Ven Johnson, were acquitted yesterday of all charges against them. While there was no question that Fieger and Johnson had reimbursed their employees for donations to John Edwards in 2004, the government did not prove that Fieger and Johnson intended to evade campaign finance laws, and therefore did not prove that they had broken the law.

I think the government lost this case for a number of reasons. First, Fieger’s team made a reasonable argument that the law in question doesn’t explicitly forbid reimbursement of employees; it only forbids giving in another person’s name. This made Fieger’s claim that he had researched the law and determined he could do what he did–reimburse employees–without believing he was evading the law.

Just as importantly, the government repeatedly put witnesses on the stand that severely damaged its case. For example, it put Jeffrey Danzig on the stand only to have him testify about how common reimbursed donations are in the legal community.

“I’ve done exactly what I’ve done at the Fieger firm that’s the subject of this litigation on numerous occasions through my legal career at another firm,” Jeffrey Danzig testified on direct examination.

Fieger and partner Vernon (Ven) Johnson are charged with breaking campaign finance laws. Money was collected from employees, friends, relatives and other for the 2004 John Edwards presidential bid and the donations were then reimbursed by law firm checks.

The times he’d done the same thing while at the Lopatin-Miller law office were “too many to count,” Danzing said in later cross-examination.

Danzig also discredited the government’s key witness, Jay Humphrey.

Finally, though he’s a blowhard, Fieger did not botch his own testimony, and apparently convincingly argued that he would never do anything that might ruin his career. Which seems to be why the jurors voted not to convict.

“I think it was the lack of evidence that got us to our decision,” said juror Krista First 24, an accountant from Adrian.

Juror Maria Kruger, 42, a college student from Clinton Township, said there was no logical explanation for why Fieger and Johnson would commit career suicide over political contributions.

“I can’t imagine you would intentionally destroy your lives and the lives of the people around you,” she said.

Scott Horton reminds us that this is one of many cases that raised questions about selective prosecution. Read more →

Rove Once Again Saying Things on Teevee He Claims He Can’t Say to Congress

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Thanks to TPM’s reader GB for watching Rove on Stephanopoulos so I don’t have to. Rove claims he shouldn’t have to appear before Congress because–in a different subpoena–the White House invoked executive privilege.

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. Third, the White House has agreed–I’m not asserting any personal privilege, the White House has offered and my lawyer has offered several different ways, if the House wants to find out information about this, they can find out information about this and they’ve refused to avail themselves of those opportunities.

Two things here.

First, the circumstances between this and the Senate subpoena are actually somewhat different. Rove’s documented involvement in the USA firings is actually much more minor than that in the USA purge. In the USA purge, he briefly attended on meeting at the White House strategizing how they would respond to Congress’ investigation and instructed the DOJ folks to come up with one story about what they said had happened. And some Republicans have said they asked Rove to fire Iglesias and later–in December 2007–that Rove told them Iglesias was gone. The discussions of what Rove did subsequent to those requests is based on anonymous sources claiming that Rove intervened directly. Those same anonymous sources, though, say that Rove had to get Bush involved personally, which would implicate the President and then–except insofar as someone was arguing that the firing constituted obstruction–executive privilege.

Here, though, we’ve got a sworn source saying she heard references to Rove directly contacting DOJ, bypassing the President and therefore bypassing executive privilege.

Also, given Rove’s involvement in Alabama politics, it’s hard to say whether his activities were those of a presidential aide or a powerful GOP operative.

In any case, the White House has not yet invoked executive privilege here. And a few things are going to make that harder to do. First, who will provide the legal review to justify it? Paul Clement did the heavy lifting the last time the White House invoked executive privilege here–but it pertained solely to the hiring and firing of USAs. Read more →

Rove’s Subpoena

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Apparently, Chairman Conyers received yet another letter from Robert Luskin claiming that Rove can spout off all he wants about his involvement (or not) in Governor Siegelman’s prosecution, but he can’t or won’t do so before the House Judiciary.

Conyers isn’t going to wait around for more of the same.

We were disappointed to receive your May 21 letter, which fails to explain why Mr. Rove is willing to answer questions in writing for the House Judiciary Committee, and has spoken on the record to the media, but continues to refuse to testify voluntarily before the Committee on the politicization of the Department of Justice, including allegations regarding the prosecution of former Governor Don Siegelman. Because of that continuing refusal, we enclose with this letter a subpoena for Mr. Rove’s appearance before the Committee’s Commercial and Administrative Law Subcommittee at 10:00 a.m. on July 10, 2008.

(Nice touch, Chairman Conyers, having the Subcommittee vote on it without, as far as I’ve heard, the news getting word.)

Now, as Conyers points out, this subpoena is a bit different than the subpoena that Harriet Miers blew off. For starters, Rove has been completely willing to answer questions in writing–and at least until now, he hasn’t asked Bush whether Bush wanted to protect the alleged conversations between Rob Riley and Rove and the Public Integrity Division of DOJ. And, as Conyers reiterates, Rove has been blabbing and blabbing and blabbing about this to the press, so it’ll be tough to argue that he can’t continue to blab under oath.

One more difference. I wonder how the Courts will feel about enforcing a subpoena issued by someone who said "Someone’s got to kick his ass"?

Just off the House floor today, the Crypt overheard House Judiciary Committee Chairman John Conyers tell two other people: “We’re closing in on Rove. Someone’s got to kick his ass.”

Asked a few minutes later for a more official explanation, Conyers told us that Rove has a week to appear before his committee. If he doesn’t, said Conyers, “We’ll do what any self-respecting committee would do. We’d hold him in contempt. Either that or go and have him arrested.”

Read more →

Happy Friday Night News Dump

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Dear George Bush:

Thank you for giving this son of immigrants the opportunity to deprive brown people of their right to vote. I’m just sorry I won’t have the opportunity to do so during the 2008 election.

Love,

Hans

I’m sorry. That’s not exactly what Han von Spakovsky said in his letter withdrawing from consideration for FEC. He did mention being the son of immigrants:

The day that I was sworn in as a Commissioner in January of 2006 was almost exactly 55 years to the day from the date that my parents arrived in the United States as penniless war refugees. It says a great deal about what a wonderful country we live in that a first-generation son of immigrants could be appointed by the President to such a post of public service.

And he did boast about his service in the Civil Rights Division of DOJ.

I am very proud of the work that I did as a career lawyer at the Department of Justice, which has been validated by numerous federal courts, including the U.S. Supreme Court.

Spakovsky must have forgotten the "sometimes" in that last sentence, as he was also reversed by those same courts.

Mostly, though, this letter is all about victimization–his victimization, not those whose votes or civil rights he ignored. He explains as his reason for withdrawing that his family does "not have the financial resources to continue to wait until this matter is resolved" (which I’m frankly fairly sympathetic to). No mention of Mitch McConnell’s refusal to let Spakovsky get an upperdown vote of his very own, without yoking him to other, more palatable nominees. To hear Spakovsky tell it, he was due this nomination, and unfair mean opposition ruined it for him.

That’s a stance that Harry Reid does not agree with, to say the least.

I welcome the President’s decision to withdraw the controversial nomination of Mr. von Spakovsky. It is an action I have repeatedly urged the President to take for more than six months. Democrats stood united in their opposition to von Spakovsky because of his long and well-documented history of working to suppress the rights of minorities and the elderly to vote. He was not qualified to hold any position of trust in our government.

As I understand it, the Senate has a Rules Committee hearing scheduled for Wednesday, at which they will be prepared to discuss the three other nominees. Read more →

Conyers to Rove: No, It’s Not an Open Book Test…

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(Updated with Conyers video–did I mention he seems cranky of late?) 

…And, besides, we want to see you sweat.

Karl Rove, still trying to back out of Robert Luskin’s taunt that Rove would be happy to testify, tried to get John Conyers to settle on written responses to questions. Conyers, who’s finally beginning to lose his temper, said no.

Our position remains, however, that since your client has made a number of on-the-record comments on these subjects to the media, and in light of your (now modified) statement that Mr. Rove would be willing to testify, we can see no justification for his refusal to speak on the record to the Committee. Please contact Committee counsel or respond in writing no later than May 21 as to whether your client will make himself available to the Committee for questioning.

[snip]

Your letter also suggests that we address written questions to Mr. Rove, which may reflect a misunderstanding of Committee procedure. Although we do often address written questions to witnesses, that occurs after live testimony, which is critical in order to allow the follow up and give-and-take that is necessary to inquiries of this nature. Since you indicate Mr. Rove is now willing to submit written answers to questions, which by definition would be recorded in a manner similar to a transcript, we do not understand why he would not submit to providing transcribed answers to live questions, as he has done in media interviews. [my emphasis]

Actually, Conyers would even agree to an almost-open-book test, providing Rove the questions before he testified.

We are willing to consider other possible accommodations, such as providing a list of initial questions that may be asked.

I thought Turdblossom was smarter than this–why does he need so much help to pass a simple little test?

One answer may have to do with scope. Rove is on the hook, of course, for all his blabbing about the Siegelman affair. But he appears to want to limit all questions to that narrow subject, something Conyers is unwilling to let him do.

We are writing in response to your May 9 letter with respect to the invitation to Karl Rove to testify before the House Judiciary Committee concerning the politicization of the Department of Justice, including allegations regarding the prosecution of former Governor Don Siegelman. Because your letter appears to reflect several misunderstandings concerning the subjects we wish to question Mr. Rove about…

Read more →

Fitz on Firing

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In their Questions for the Record submitted after he testified, HJC managed to ask Patrick Fitzgerald one obvious question they didn’t manage to ask when he testified at their hearing on Special Counsels (h/t MadDog). What would have happened–or would happen to John Durham, investigating the torture tapes destruction–if a Special Counsel got fired during the course of the investigation? Actually, in the QFRs Fitzgerald got asked about 5 different versions of the question, only one of which elicited a really useful answer (at least as it might reflect on John Durham’s investigation):

13. If you had been fired as a U.S. Attorney, what impact would that have had on the CIA leak investigation? What impact would that have had on your appointment as Special Counsel?

During my tenure, this question did not present itself. It is not clear to me what the legal implications would have been had I been relieved of command as United States Attorney while serving as Special Counsel. (This might be an issue that should be specifically addressed if there is a delegation of power to a sitting United States Attorney in the future as it is entirely possible that a United States Attorney could be asked to resign after a change in administration.) It would appear that unless the United States Attorney were specifically retained in some other capacit (such as a Special Assistant United States Attorney), he or she could no longer serve as a Special Counsel who was employed by the Department of Justice and whose authority had been delegated by the Attorney General. It would be possible that a new appointment could be made for such a former United States Attorney which would provide that he or she would serve as a Special Counsel from outside the Department of Justice pursuant to the appropriate regulations.

Had I been relieved of command as United States Attorney while conducting the CIA leak investigation, even if a legal basis were established for me to continue as Special Counsel or in some other proper capacity, I would nevertheless have had to determine whether it would be appropriate for me to continue representing the government under all of the circumstances. Read more →