Bush Did NOT Invoke Executive Privilege for Rove

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.

So here’s what has happened:

June 27, 2007: Paul Clement writes a memo supporting the invocation of executive privilege for Harriet Miers and Sara Taylor–but referring generically to "current or former White House officials"–regarding the hiring and firing of US Attorneys

July 10, 2007: Steven Bradbury writes a memo arguing Harriet Miers–and Presidential aides more generally–do not need to appear in response to Congressional subpoena

August 1, 2007: Steven Bradbury writes a memo finding that, based on the earlier Miers memo, Rove "is immune from compelled congressional testimony about matters (such as the U.S. Attorney resignations) that arose during his tenure as an immediate presidential adviser and that relate to his official duties in that capacity"

May 25, 2008: In yet another TV appearance discussing things he claims he can’t discuss with HJC, Rove states he thinks Bush will invoke executive privilege … probably

July 1, 2008: In a letter to HJC, Luskin mentions executive privilege and absolute immunity, though he had not yet received any communication from the White House telling him Bush was invoking executive privilege

July 9, 2008: Fielding writes Luskin, stating that Rove is not required to appear before Congress–based on the two earlier documents pertaining to the US Attorney purge (also note, unlike last year, when Fielding specifically said Bush had invoked Executive Privilege with regards to Miers, Fielding did no such thing with regards to Rove, and Fielding also did not include the June 27 Clement memo supporting a Privilege claim)

July 9, 2008: Luskin writes HJC, this time making no mention of executive privilege, stating that Rove will not appear

Notice how that executive privilege claim fell by the wayside? Now, perhaps the White House decided against invoking executive privilege because they didn’t want to claim that anything Rove was doing with regard to the Siegelman prosecution related to the President at all. Perhaps they opted against it because they realized that, if they invoked executive privilege on this subject after Rove had spent the previous six months on TV blathering freely about it, it would turn the idea of executive privilege into the laughable principle of executive and TV privilege.

But for some reason, the White House chose not to invoke executive privilege with regards to the topic of Rove’s involvement in the Siegelman prosecution.

Contrary to everything you’re reading in just about every report out there, Bush did not invoke executive privilege for Rove.

Now, I’m harping on this distinction for several reasons:

  • Luskin’s legal style has always relied on linguistic trickery. He likes to make confusing statements and then have stupid journalists accept those statements with little scrutiny, and he does so to create a patina of legality for Rove. That’s part of what Luskin was trying to do with his July 1 letter, conflate absolute immunity and executive privilege so as to create the impression that Rove couldn’t testify–because of Bush’s privileges–rather than the reality that Rove is choosing to exercise a purported immunity that he himself holds. Luskin is pretending Rove is protecting Bush’s privilege, when mostly Rove is just protecting Bush’s obstinacy and his own behind. Thus far, thanks to the sloppiness of the reporting on this, Luskin’s verbal trickery is working like a charm.
  • The necessary preconditions for executive privilege and absolute immunity are different. The former relies on the claim that the Presidential aide was advising the President to help him make a decision. The latter, even assuming it exists, relies on the claim that the activities in question were the "official duties" of the presidential aide in question. If HJC is at all attentive to this distinction (yeah, I know), then the distinction–the fact that Fielding just legally asserted that Rove’s official duties included witch hunts against Democrats–will lead to some other trouble for Bush and Rove down the road.
  • The absolute immunity claim–both in general and, particularly as Rove has asserted it, is completely audacious and should be treated as such. In particular, unlike Miers before him, Rove is asserting absolute immunity without the President first invoking Executive Privilege. Also, as Linda Sanchez pointed out today, the legal precedents Bradbury cited to claim absolute immunity apply only to current Presidential aides:

Each of the prior OLC opinions on which Mr. Bradbury relies cover only current White House advisers, not former advisers like Mr. Rove. This distinction is crucial, as all of the arguments purportedly supporting absolute immunity for current presidential advisers simply do not apply to former advisers. For example, the primary OLC memorandum from which all subsequent adviser-immunity opinions have been derived, authored by Chief Justice and then-OLC head William H. Rehnquist, reaches the “tentative and sketchy” conclusion that current advisers are “absolutely immune from testimonial compulsion by congressional committee[s]” because they must be “presumptively available to the President 24 hours a day, and the necessity of [appearing before Congress or a court] could impair that ability.”

If Rove and Luskin and Fielding succeed–as they have thus far–in getting the press to believe Bush invoked executive privilege, then no one will look more closely at just how flimsy–and audacious–Rove’s logic for blowing off HJC really is. If we focus on the bogus claim of absolute immunity, then some interesting alternative steps present themselves. But if everyone just buys Luskin’s trickery, the Luskin and Rove will have gotten away with smoke and mirrors once again.

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  1. JohnForde says:

    Is the reason Bushie is resistant to using EP that it will look like obstruction when Rover’s behavior is revealed?

    • emptywheel says:

      Possibly.

      Note, it’s only now that I realize that they never formally invoked EP for Rove LAST YEAR. They did so generally, but not specifically. I think they realize that Rove may some time face real legal charges of obstruction (in the Manny Aragon case, for example, or in the Rezko case) or something worse with Siegelman. So they’re trying to make a claim that doesn’t, itself, depend on some involvement of Bush. Plus, he probably wasn’t involved in the Siegelman stuff.

      But I also think all of Rove’s blathering about Siegelman necessitated something else. I think DOJ may well have laughed in Bush’s face when asked for an opinion justifying EP in this case–how can it be EP if Rove is sharing it with all of Fox’s viewers?

  2. BayStateLibrul says:

    OT,

    Long live Dennis Kuchinch, he just gave a tremendous speech indicting
    Bush for an impeachbale offense… they have two days to act.
    Come on Nancy do what is right.

    • phred says:

      Come on Nancy do what is right.

      Ha ha ha ha ha ha ha… Whew! That’s a good one — LMAO ; )

      • Tross says:

        I just sent this post to a co-worker (as I often do), and he just said the same thing BayStateLibrul said.

        My response was the same as yours. It’s too bad this administration has made us so jaded.

        • bell says:

          it is not just the present admin that has made many jaded… it is the action of your future president obama with regard to fisa that solidifies the jaded outlook… game over folks.. it is no longer just reid or pelosi, bush or cheney that can contain the huge disappointment… it is now your future president and that is a sad fact that no one is going to be able to maneuver around, especially those who held out some hope for change… the only change that is now going to come is going to come at a much higher price then a vote one way or the other…

      • bobschacht says:

        Perhaps you missed the CBS report and another today indicating that Nancy might actually allow the HJC to have a hearing? I hope those rumors are true, and that the hearing, if it happens, will be more than a kabuki dance. If it is really an impeachment hearing, a number of very important tools fall into place.

        Bob in HI

        • JimWhite says:

          Perhaps you missed the CBS report and another today indicating that Nancy might actually allow the HJC to have a hearing?

          Wexler jumped on it in a hurry. This just came in my email:

          Capitol Hill is buzzing today with major developments regarding our campaign for impeachment hearings for President George W. Bush and Vice President Dick Cheney. Just today, in what could be described as a perfect impeachment storm:

          • Karl Rove once again thumbed his nose at Congress and the American people by brazenly ignoring a lawful congressional subpoena to testify before the House of Representatives;

          • Judiciary Chairman John Conyers indicated his willingness to use the power of inherent contempt against Rove if necessary;

          • Rep. Dennis Kucinich introduced another article of impeachment on Bush’s lies regarding the Iraq war; and

          • Speaker Nancy Pelosi was quoted today saying that the House Judiciary Committee should address the issues that Kucinich raises in the House Judiciary Committee.

          After years of work by so many of you, the time appears ripe to finally hold Bush and Cheney accountable.

          She wouldn’t really let this move forward, would she?

  3. Peterr says:

    Bush knew what the big issue of his final year in office was going to be, and he went out and got him a lawyer with a lot of experience in the area of executive privilege: Fred Fielding, Richard Nixon’s old counsel.

    Of course, Bush may have noticed that Fred’s advice did not keep Nixon from deciding in August 1974 to spend more time with him family earlier than anticipated.

    Between Luskin blowing smoke and Fielding circling the wagons, it’s going to be quite an interesting summer — assuming the HJC wants to keep pushing.

    Nice catch, Marcy!

    • randiego says:

      Any idea why they chose Manhattan?

      as a member, I got a lot of fundraising notes from the ACLU – this is one they are definitely getting some $$$ from me on!

    • earlofhuntingdon says:

      Interesting. That’s the ACLU’s home jurisdiction, I believe. The Second Circuit is regarded as top notch, though I don’t know the district court judges, one of whom will get this case. An adverse decision in the district or appellate court there would not directly affect cases in the Ninth Circuit in California. Only a S.Ct. decision would do that. Perhaps their choice is simply based on cost-efficiency and to make sure they get at least two bites of that apple.

  4. drational says:

    I am wondering if they are secretly hoping Obama wins in November. Then everything will be feel good happy and no retribution. Of course, if McCain wins they get Mukasey-type obstructionists to help collaborate with the Rockefeller-type enablers….

  5. earlofhuntingdon says:

    Classic smoke ‘n mirrors. The Luskin and Rove comments create the impression of evoking privilege. Fielding and Bradbury raise the issue, but in a narrowly defined context – which is lost in most reporting anyway.

    Miers, for example, held Fielding’s job as White House Counsel, the President’s lawyer. Bradbury’s memo refers to privilege in the specific context of such an adviser, giving advice on professional matters relating to the conduct of official White House business. In that circumstance, Bradbury makes the debatable claim that Miers need not show up at all, much less answer specific questions from Congress’ about the advice she gave on the job.

    Miers and Rove’s situations are apples and oranges. The White House hasn’t claimed that the questions Congress wants to inquire into deal with the execution of Rove’s official duties. In fact, Congress wants to ask him about potentially illegal purposes in hiring and firing USA’s and the potentially illegal use of prosecutorial powers to promote partisan political, not legitimate law enforcement, purposes. By definition, such conduct would be outside of official duties and within Congress’ powers of oversight.

    It would also seem that the President, the holder of the privilege, or his agent, must communicate directly with Congress properly to assert the privilege. Here, only Luskin is talkin’. I don’t buy it. And top-level progressive bloggers shouldn’t need a Ph.D. from the home of the Wolverines in order to get it right. Shame on them. Kudos to EW.

    • emptywheel says:

      The White House hasn’t claimed that the questions Congress wants to inquire into deal with the execution of Rove’s official duties. In fact, Congress wants to ask him about potentially illegal purposes in hiring and firing USA’s and the potentially illegal use of prosecutorial powers to promote partisan political, not legitimate law enforcement, purposes. By definition, such conduct would be outside of official duties and within Congress’ powers of oversight.

      Bingo. That’s why I said this:

      If HJC is at all attentive to this distinction (yeah, I know), then the distinction–the fact that Fielding just legally asserted that Rove’s official duties included witch hunts against Democrats–will lead to some other trouble for Bush and Rove down the road.

      Because while such conduct would, by definition, be outside of official duties, the Counsel for the President just submitted a document to Congress insisting that, in fact, those activites were among Rove’s official duties.

      Even if you take a charitable view towards Rove’s involvement and suggest–which is what I think Mukasey believes–that Rove simply presented evidence of a crime to PIN and they decided it merited an investigation, even if you adopt such a charitable view, then it basically says Fred Fielding just asserted that ROve’s JOB was to go out, dig up evidence of potential crimes on the part of high profile Democrats, and deliver that evidence to DOJ. So even with the most charitable interpretation, you’re in criminal Hatch Act territory, based on (among other things) the legal representations of the WH Counsel.

      • earlofhuntingdon says:

        With Bush’s inattentive blessing, I think Karl, like Cheney, would say that his official job is horizonless, it’s whatever the President asks. That’s a lot, because Bush’s caricatured version of being a CEO is to delegate all the work except the handshakes and Cheney and Karl are very inventive and very forceful.

        As you suggest, Rove necessarily would disclaim any political motive relating to recommendations to or communications with the DOJ. He was just being a good citizen and reporting possible crimes, and watching out for things, like the Prez asked him to. That pretty readily falls into “the cat ate my homework” category. I would hope that no self-respecting second grade teacher, and no competent prosecutor, would take it at face value.

        A few Dems may keep these issues on the burner through the election, but what then? What is it about pursuing past wrongful conduct, by the Prez, the VP or his top aides, that makes Obama so uncomfortable that he, like Pelosi on impeachment, seems already to have taken such things off the table?

        • emptywheel says:

          Problem is, Rove CAN’T claim to have horizonless official duties. The only way, thus far, he has avoided a slew of Hatch Act claims is by claiming that he kept his partisan and his official duties separate.

          Once Rove makes such a horizonless claim, than EVERYTHING he has done then becomes an official duty, putting a bunch of really sordid and illegal actions solidly under the “happened on govt property paid for by govt money” category.

          And ultimately (and this is why I hope people start picking up this official duties claim), how do Rove’s official duties become official duties? By order of the President or some other top official. So, at least in theory, this is tantamount to Fred Fielding asserting that someone in a position of power decided it was within Rove’s official duties to go out and politicize the DOJ. And then we quickly get into presidential responsibility.

          • wavpeac says:

            So is this a possible path to criminal conspiracy…??? Cause, we really need to snag them all.

            • bmaz says:

              heh heh, that is an interesting thought. Conspiracy to commit Hatch Act violations. Can’t see it, but it is interesting

          • earlofhuntingdon says:

            The problem is, that’s almost certainly how it worked. Rove had a hand in everything. But if Rove does claim horizonless responsibilities, then as Bush’s agent, he implicates Bush directly. Which is your point. If it gets to that, then for the first time, we have a conflict between Rove and Bush. And we all know that for Bush, loyalty is a one-way street.

            So Rove had to be partly working on his own, on non-government business, even during his time as presidential advisor. Moonlighting. Or he implicates Bush in his sordid deeds. Which means that if claims for blanket immunity from questioning don’t deter Congress (hold the guffaws), then Houston, we have a problem.

            • emptywheel says:

              Right. That’s what I think the route is. Make it so Bush’s interests diverge from Rove’s (and, while we’re at it, Barnacle’s).

      • earlofhuntingdon says:

        The consequences for criminal Hatch Act violations are what? Termination of public employment?

          • emptywheel says:

            Nuts. Criminal Hatch is when you fire someone bc they wouldn’t donate money to your candidate or otherwise affect an election. It might be applicable but it’d be a stretch.

                • emptywheel says:

                  No, Doan was found to have violated Civil Hatch Act. But the penalty is firing–unless you’re a direct Presidential appoint, in which case he gets to decide to keep you.

                  • Peterr says:

                    Penalties for violating the Hatch Act, per US Office of Special Counsel:

                    An employee who violates the Hatch Act shall be removed from their position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than 30 days’ suspension without pay shall be imposed by direction of the Board.

                    The OSC notes, however, the following as well:

                    Federal employees should also be aware that certain political activities may also be criminal offenses under title 18 of the U.S. Code. See 18 U.S.C. §§ 210, 211, 594, 595, 600, 601, 602, 603, 604, 605, 606, 607, 610.

                    Click through the link above to see the embedded links to the various sections of 18 USC, if you are so inclined.

                    • emptywheel says:

                      Fuck.

                      How can what Rove did not fall into any of those laws? Here’s the closest, 610:

                      It shall be unlawful for any person to intimidate, threaten,
                      command, or coerce, or attempt to intimidate, threaten, command, or
                      coerce, any employee of the Federal Government as defined in
                      section 7322(1) of title 5, United States Code, to engage in, or
                      not to engage in, any political activity, including, but not
                      limited to, voting or refusing to vote for any candidate or measure
                      in any election, making or refusing to make any political
                      contribution, or working or refusing to work on behalf of any
                      candidate. Any person who violates this section shall be fined
                      under this title or imprisoned not more than three years, or both.

  6. earlofhuntingdon says:

    OT, but it’s nearly time for the news hour. I caught five minutes of ABC’s Charlie Gibson yesterday, by mistake, and nearly gagged at his fawning questioning of John McCain. Purportedly about a “news” event of the day, it was little more than free campaign time.

    The MSM really is just the junior coalition partner for the GOP. Something tells me that even the Dems’ craven concession over the FISA/Fourth Amendment amendments won’t be enough to get the MSM to enter a grand coalition with the Dems next year. I think the MSM is more likely to comb through its archives and relearn how to do a little adversarial political reporting.

    • emptywheel says:

      Must have missed this, bmaz:

      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.

  7. PJEvans says:

    The LA Times picked up the AP story, with its claim about executive privilege.

    So I wrote and pointed them at this post. (Literally: I put the URL in the letter, and said you were a recognized expert in these affairs.)

  8. Citizen92 says:

    In the other thread, I was discussing that Rove is avoiding his call to testimony today because he is in Sweden.

    Rove is also giving interviews there this week.

    Here’s a TV clip from Swedish TV-4, interspersed with bits of an interview with Karl. The important parts are in English. An interesting exchange with the reporter at the 2:51 mark…

    Rove: We’re (Bush and I are) going to have lunch next week. We stary in touch. We’re talk every few days. I see him every few weeks for lunch.

    So Rove is still regularly in touch with President Bush… I wonder what that means. I wonder what they’re talking about.

      • Citizen92 says:

        Especially interesting to me since Paul Alexander’s “Macchiavelli’s Shadow” relates Rove’s firing in church, which, at least to me would signify the two parted on bad terms. Yet I don’t think that Rove or Bush have ever confirmed that.

        So…

        That could mean that it just an uncorraborated story?
        Or it could mean that Rove is full of himself (kinda like Gannon)?
        Or it could mean that Rove and Bush regularly talk.

        So if they regularly talk, every “few” (four?) days, how could the subject of the subopena be avoided?

        Maybe Bush gave Rove “verbal” priviliege?

        • emptywheel says:

          I increasingly suspect what happened is that Bush told ROve he’d invoke privilege, and either the WH or DOJ balked. THe WH, because they realized it’s a political swamp for Bush. DOJ, because they already know enough about Siegelman to know there’s no way in hell to claim that Rove was doing something taht was privileged.

          I actually think this had already gone down in May when Rove said Bush woudl “probably” invoke privilege–Bush had said he’d do so, but then someone balked, and ROve still believed Bush would persuade the others to support the claim.

          So Fielding did something desperate last night–perhaps an attempt to force Mukasey, who has said you can’t prosecute someone if they’re following an OLC opinion in the past–into supporting ROve’s stance. Thing is, it is remarkably, incredibly flimsy, so I kind of suspect Fielding’s claim may cause WH more problems down the road.

  9. tbsa says:

    It doesn’t really matter what the penalty is for Rove not showing up because the democrats aren’t going to do didly about it.

  10. Citizen92 says:

    And still treading a little o/t, but apparently Rove also employed White House staff people to make pro-Administration comments on blogs. Sort of the home-grown, in-house military talking heads program?

    Commenting on blogs
    That got his team behind Bush during his years in the White House, he says to newspaper Dagens media.

    – We worked actively to follow and comment on what was written in blogs on political issues which we prioritized. The idea was that a couple of people with us went in and commented on matters of substance and in a proper and legitimate tone on various blogs, “says Karl Rove.
    – In 2006, we worked for the first time aggressively against blogs in the debate on how immigration policy should be reformed.

    According to Karl Rove devoted to the U.S. government only to “factual information”:
    – A politically inflamed debate with high ?? tone, we gave us never enter, When someone blogs, for example, wrote that “the authorities should start to arrest people and send them back across the border,” our people went in and wrote “In the last year ??, arrested and authorities seized a total of 1.3 million people then were deported to the country.” Such data, few Americans who knew about, “says Karl Rove to today’s media.

    http://www.expressen.se/ nyheter/ fra-lagen/ 1.1223853/ bush-radgivarens-tips-en-bloggstrategi

    (translation by translation.google.com)

  11. Loo Hoo. says:

    Maybe Rove is daring Bush NOT to get him out of this mess…. You want me to testify, George? I’ll testify alright. If not, figure something out.

  12. JohnLopresti says:

    I think ew is right, read enough authoritarian political newspapers, then reading Luskin is an open book lexically. When a project took me to some foreign countries for historical research, and the news was so abominably obtuse with respect to local nations but insightful about the US, there was a dawn of understanding the sleights readily adaptable among common-rooted languages, and their respective societies. While Rove as pol in chief likely did not want to know about reverseSere or sendingAnthrax to liberals, likely the projects needed his lube oil review prior to deployment. So bringing him into the building where a hearing like today’s might have occurred was probably too close to some precipice for Luskin’s and Fielding’s liking, albeit for differing reasons. Still, I think Sanches has a way to pursue, at a minimum, a few depositions of Rove. My evaluation is Rove pretty much dugs his skulls alone, though, so she will have to bring him in, not his assistants.

  13. readerOfTeaLeaves says:

    If Rove and Luskin and Fielding succeed–as they have thus far–in getting the press to believe Bush invoked executive privilege, then no one will look more closely at just how flimsy–and audacious–Rove’s logic for blowing off HJC really is.

    Another impressive, remarkable catch.
    Thank you!

    It’s clearly time for Congress to laugh at Rove’s silly legal fig leaf; the tiny, itsy bitsy one mentioned in this post. Heh.

  14. Citizen92 says:

    Still, if Rove and Bush talk “every few days” as Rove claims in that TV clip, I’d have to guess that the whole subpoena thing has been on the agenda every time.

    As for DOJ knowing “enough” about Rove’s (and other’s) actions toward Siegelman, do you think that maybe they still rooting around for more? Maybe Fielding asked them to go back, one more time, just to make sure that a Exec Privilege claim would be suicide for the WH?

    I did find DOJ’s OPR investigators timing in reaching out to Siegelman yesterday a little curious.

    Maybe that’s why Conyers’ gave five more days?

    • readerOfTeaLeaves says:

      Will that OPR reach be simply more butt covering in the guise of PR? Or not?
      And will it simply give Rove more time to stall and move the clock back?

      • earlofhuntingdon says:

        Since reports on OPR investigations are not made public, it’s likely to buy time and to persuade others “not to look” because “it’s already being investigated”. Probably about as earnestly as Shrub looked for which of his aides disclosed Plame’s identity.

      • Citizen92 says:

        I think that Fielding and Mukasey probably want to get Rove off of their collective backs, asap, considering the innumerable risks he represents. Yet the Siegelman op was probably Karl’s own baby, while in cahoots with Canary.

        In other words, he probably didn’t share too much of the details. Which has sent DOJ and OPR (and Fielding too) on a search for buried bodies and clues that Rove hasn’t shared. After all, the guy lied up and down about Plame – as Scott McClellan keeps reminding us.

        If the President promised Rove he’d make a privilege claim for Siegelman I’m sure that Fred, Mukasey and OPR are trying damn hard to make it happen.

  15. CCinNC says:

    Marcy, do you (or does anyone, AFAYK)communicate this stuff to Conyers and Sanchez? Do we trust that they and their staffers deduce the same things you do?

  16. behindthefall says:

    Bear of Little Brain, here … Since the press is saying Rove has invoked executive privilege, won’t someone be more likely to ask why Bush was involved in the Siegelman business?

    • emptywheel says:

      No, because they’ll treat it–as they already are–as all the same subpoena effort as is currently pending before Bates. Again, precisely what Luskin wants, because that buys him time–perhaps until Rove gets his blanket pardon–to keep this information from coming out.

      What I would like the press to do is focus on the reasons why EP wasn’t invoked–and probably can’t be.

      • MarieRoget says:

        What I would like the press to do is focus on the reasons why EP wasn’t invoked–and probably can’t be.

        I’m thinking that will only happen if Conyers and/or Sanchez come out w/a statement that EP wasn’t invoked for Rove in this matter, otherwise, forget it.

        Great work upstairs delineating this, ew. Very clear, the way your separated it all out. And you’re probably already aware that TP linked you in an update to their post on Rove.

      • MadDog says:

        So Conyers in a forlorn hope to get at least some traction for his Turdblossom safari, throws out a wee 5 day extension.

        If his “bait offer” is refused as is likely, then his quest for an Alabama trophy ends without bagging any game.

        • emptywheel says:

          Perhaps. But what would happen if, when Mukasey comes to testify before HJC (which is supposed to be next week but I don’t see it on the calendar yet), someone asks him, “What did you mean when you said to Chuck Schumer that a hearing might be the appropriate way to figure out Rove’s role in the Siegelman affair?” Or someone asks, “Did the WH ask DOJ for an opinion on EP? Did they offer it? Why didn’t DOJ support such a claim? DOes DOJ support Rove’s absolute immunity claim, in this case, particularly since his activities clearly weren’t entirely “official duties.”

          So what if Mukasey gets asked those things, and he surprises us?

          • MadDog says:

            So what if Mukasey gets asked those things, and he surprises us?

            I’ll buy you a Beamish! *g*

            I do agree that Conyers, if not also others on the HJC, are indeed likely to have their dander up wrt Turdblossom, and will want to extract a pound of flesh on it from Mikey Mukasey, but I’m not at all optimistic that Mikey will do more than his normal song and dance mumble.

            All things Siegelman will now be the exclusive domain of OPR with nary a peep to be heard from the AG or his loyal fawning subordinates in the DOJ since this is an “ongoing” investigation.

            Mikey will likely end his HJC appearance by checking his watch, and then asking if anyone has the correct time because he’s checking to see if the clock has run out yet.

            Said with a shite-eating grin of course.

          • MadDog says:

            And btw, I would dearly love it if someone had a couple of brass ones (Conyers, heck even Nancy) and slapped a Contempt of Congress order on Mukasey immediately after being sworn.

            And then in my dream of dreams, I see Chairman Conyers instructing the Sergeant At Arms to manacle the prisoner and remove him to the dungeons.

            What? Why are you all laughing? A guy can dream, can’t he? *g*

      • behindthefall says:

        Thanks for the answer. I guess I get it. It must be hard being a reporter. Concentrating, remembering, questioning, and all that.

        “We use our neurons so you don’t have to …”

  17. cboldt says:

    The press is a chronic fuck up. When they get something right, it’s an accident.

    I’d be concerned if Congress fell for Luskin’s BS, but it should be no concern whatsoever that the press missed the boat.

  18. BayStateLibrul says:

    Who amazes me is Luskin. He was able to get Rove off with five tippytoes
    to the Grand Jury Room, and now has managed, with his MFA in legalese to muddy the Mississippi.
    Could he be like Cards manager Larussa, “part tactician, part pyschologist,
    and part river boat gambler.”?

  19. freepatriot says:

    so let’s cut thru all the bushit

    who do you think would enforce these subpoenas, ew

    who would YOU pick to be Obama’s AG ???

    would you want a “Special Prosecutor” ???

    and what’s the chance of empaneling a Grand jury with security clearance ???

    you can dig out all this material, digest it and make sense of it, can you spit out a name that could keep up with you ???

  20. bmaz says:

    Oh Marcy, even Turley is on Abrams discussing with guest host Schuster the assertion of EP by Rove. If Turley doesn’t get it, the press is a lost cause. On the positive side Turley thinks EP doesn’t apply…

      • MadDog says:

        I just left a comment on Prof Turley’s blog “advising” him that he might want to partake of your post here to get the “real” scoop on what has actually occurred.

        We’ll see if he takes the bait. *g*

        • MadDog says:

          Hmmm…I was sure that hitting the submit button over there would do the deed, but perhaps I’m being “moderated”.

          With a blogger handle such as mine, wouldn’t you? *g*

      • freepatriot says:

        turley is a “bigshot Lawyer” ???

        from what I’ve seen, I wouldn’t hire him

        and yeah, you’re probably gonna have to explain this stuff to the bigshot lawyers, too

        some of them are too busy to do minor stuff like readin …

      • strider7 says:

        I don’t know if I would do that

        Now at midnight all the agents
        And the superhuman crew
        Come out and round up everyone
        That knows more than they do
        Then they bring them to the factory
        Where the heart-attack machine
        Is strapped across their shoulders
        And then the kerosene
        Is brought down from the castles
        By insurance men who go
        Check to see that nobody is escaping
        To Desolation Row

  21. hackworth says:

    Wasn’t Schuster a fine Republican knob polisher tonight? Worse than Abrams – and that is bad.

  22. JimWhite says:

    Tee hee. ThinkProgress has corrected their inspired typo, but I like the original as it appears in the post above:

    Toady, Karl Rove was set to appear under subpoena

    Yes, Karl is quite the toady. Maybe he thinks subpoena is another word for “rock”?

  23. AZ Matt says:

    FRom Think Progress:

    Update: Marcy Wheeler astutely notes that Bush did not, in fact, invoke executive privilege for Rove.

    • Loo Hoo. says:

      Whoa! Confetti, flags, high school bands! And regular folks getting jazzed and whooping, hollering, and generally getting American!

  24. JTMinIA says:

    J.Turley brought up an interesting issue on Verdict. He said that inherent contempt hasn’t been used for 70 years because Congress could trust the AG to take (plain) contempt citations to GJs for indictments. But now that the current AG is not keeping his side of this deal, inherent contempt becomes much more likely.

    http://www.hotpotatomash.com/2…..e-j-1.html

    • bmaz says:

      Yep, I think that is about right too. And, as Turley noted, the foundation behind inherent contempt is a lot stronger than people think; it is just that it has not had to have been used in such a long time that people are not familiar with it, and therefore discount it’s viability.

  25. Hmmm says:

    Interesting. So hypothetically, if either body of Congress directs the Sargeant-at-Arms to go drag a scoundrel (any of them will do) and lock that person in their little dungeon ’til they either cave or are tried for contempt on the floor, does that person have recourse to any court of law to challenge their detention, or any other judicial basis/mechanism to obtain a release before/without the Congressional trial? Just ‘cuz, ya know, we’ve already got Articles I & II going there, so why not go for the three-fer?

    • bmaz says:

      The IC citation has to be voted before execution on the contemnor by the sergeant at arms, but it does not have to be voted on the floor by the full body, it can be voted by a duly formed committee; i.e. justice, oversight, etc. The contemnor can then be held until he cures his contempt or the legislative session ends. Of course, the body or committee can order it ended at their will and it can be revoted and reestablished when the next legislative session begins anew. Far as I know, there is no recourse with the exception of Habeas Corpus. However, as long as the contempt was voted properly by the body or committee, and there was no fraud, coercion or other irregularity in the vote, then I see no basis for a Habeas writ being granted.

      • PJEvans says:

        I suggested inherent contempt the other day in an e-mail to Henry the W, in regard to his latest attempt to subpoena one of the WH troglodytes. (I’d refer to them as centipedes, living under rocks, but that’s an insult to centipedes.)

      • Hmmm says:

        Thx bmaz, interesting answer. Still deeply hypothetically, what body would hold such an HC hearing, would it be the Congressional body that initiated the action, vs. a court of law?

      • Akatabi says:

        Far as I know, there is no recourse with the exception of Habeas Corpus

        And they say irony is dead…

        • bmaz says:

          Yeah that is kind of sweet isn’t it? The one avenue they could attempt at all is the very one they so blithely tried to eviscerate.

  26. yonodeler says:

    What if the White House were to fight an inherent contempt arrest by evacuating or physically protecting the contemnor? Most Members of Congress are profoundly afraid of constitutional crisis, as though constitutional crisis in more than one form had not been going on for a long time.

    • emptywheel says:

      No–Conyers is in complete support of what I said. There are two things (if you buy Bush Logic): Executive Privilege, and Absolute Immunity. Here’s what Conyers said:

      The claim that Mr. Rove and the White House make is that high-level aides to the president are totally immune from compelled congressional testimony. Not that there are certain subjects they cannot discuss in a public hearing, nor that the White House has a right to review questions that are asked, but that they are in a class entirely by themselves — a separate group that is above the reach of a subpoena and, consequently, above the law.

      See? No assertion that they’re immune to keep Presidential counsel secret. Just plain, all-out, immunity.

      • Hmmm says:

        Ah, how ambiguous written snark can be… Sorry ew, I didn’t intend to imply that JC had disproven your analysis, only what a pity it was that JC wasn’t calling out the important distinction (no specific invocation of EP) that you drew. If he had, then all the other reporters might have sat up and taken note. As it is, lazy readers will conflate the two flavors of the Get Out Of Subpoena Free card.

  27. Hmmm says:

    Linda Sanchez says she thinks if they take the Rove IC to the floor they’ll likely win, but due to various upspiffs over the years there is no longer any actual cell in the Capitol. Turley says there are catacombs down there, though…

    Huh. DC city jail lockup, then, Roverboy? Or is it gonna be all Phantom of the Opera style way down in the drippy catacombs?

  28. AZ Matt says:

    Reading the Conyers comments I think it leaves little doubt that he is pissed and ready to up the ante.

  29. Loo Hoo. says:

    I think everyone should just calm down and respect Karl Rove’s power.

    Get over it, America.

  30. MarkH says:

    If Congress lets anyone in the Executive branch stiff their subpoena, then their oversight function is over…forever!

    • cal1942 says:

      MarkH is absolutely correct.

      It’s not possible to conduct oversight of the executive branch as the Constitution mandates without honoring subpoenas.

      Basically, Constitutional government in this nation has ended. It appears that the Constitution has been reduced to a mere political document and is no longer fundamental law and the outcome of this election, no matter who wins, will only accelerate the decay.