Did Bush Claim Executive Privilege for Rove Last Year?

Another day, another post on Turdblossom–love ya, Karl!! "C’mon, walk out with me, walk out with me."

Today, I wanted to observe something about Rove’s failure to respond to a Congressional subpoena from last year–in that case, from the Senate Judiciary Committe; they were looking for testimony explicitly related to the USA purge.

As I sort of alluded yesterday (and MadDog had some interesting points to raise) it’s not entirely clear what basis Rove used to blow of the Senate last year. Here’s the timeline:

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

July 26, 2007: Senate Judiciary subpoenas Rove

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"

August 2, 2007: Deadline on Rove’s subpoena

August 13, 2007: Rove’s "resignation"

August 27, 2007: Gonzales "resignation"

December 13, 2007: SJC votes to hold Rove (and Bolten) in contempt

As I pointed out yesterday, the June 27 Clement opinion did not name Rove (indeed, the opinion was written before he was subpoenaed), but it was written generally, so as to apply to the process of hiring and firing USAs generally, as well as applying to Miers and Bolten, who are named in the opinion. In his letter to Rove, Leahy mentions Bush’s "blanket claim of executive privilege," suggesting he understood the Clement memo and the executive privilege claims made subsequent to that claim to apply to everyone (recall that Sara Taylor and Scott Jennings were also subpoenaed to appear during this period and both invoked privilege).

Thus, the only documents that actually have Rove’s name on them are the July 10 claim of absolute immunity and the August 1 application of that to Rove. Again, as I pointed out yesterday, neither of these documents use the phrase "executive privilege."

Everything points to last year’s non-appearance, unlike Thursday’s, to have included a Bush executive privilege claim, though. After all, the invocation applied to Taylor and Jennings, though their names weren’t on the opinion ruling it acceptable. Leahy seems to think it applies to Rove in this case (and Leahy tends to have a clearer notion of these things than some other Members of Congress). And, while I don’t normally trust anything Rove says himself, Rove suggests his non-appearance last year included a claim of 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. [my emphasis]

Though, as always with Turdblossom, if a sentence uses the passive construction, "privilege has been asserted … similar instance," you can never be entirely sure.

The only reason I wonder whether Bush believes he didn’t invoke EP with Rove is that there may have been a reason to avoid doing so. As with the matters he was subpoenaed to testify about on Thursday, even with the USA purge, Rove was the one at the nexus of the illegality, the one taking requests from top Republicans and trying to respond to those requests by firing USAs. Specifically with the case of David Iglesias, for example, Rove was the one who couriered the demand that Iglesias get fired to Bush who, reportedly, did, personally, order Gonzales to fire Iglesias.

In other words, it’s not that Rove’s involvement didn’t include "advice" to Bush–it did, in huge ways. But that advice is not only the most illegal aspect of the USA purge (because in several cases it amounts to obstruction of justice), but it’s also the stuff that most directly implicates Bush.

Like I said, all the evidence thus far suggests Bush’s invocation of executive privilege last year did extend to Rove (though I will try to double-check on Monday, between calls to DOJ). I’m just not positive we know one way or another. And in an attempt to try to figure out why the White House failed to invoke privilege this week, I’m wondering precisely what happened last year.

  1. earlofhuntingdon says:

    Bradbury’s claims seem overbroad. It’s one thing to say that the President can assert EP over conversations he had with his personal adviser about which attorneys to choose as his USA’s. That’s squarely within his executive authority.

    Except one thing, which Bradbury fails to address. Congress has concurrent jurisdiction over some aspects of hiring and firing USA’s, eg, in determining how many there are, their term and the manner of their interim replacement, and less directly, their budgets and staffing, and the laws they enforce. Nor does Bradbury’s simplistic scheme deal with Congress’ legitimate inquiry into whether in rendering advice to the President, or in implementing presidential authority delegated to him, Rove violated applicable laws, of which there are many.

    On the last thread, the subject briefly came up about the neocons relentless drive to redefine the political center as their own priorities. So, it’s useful to point out that before Bush II, questions about overlapping concerns would be negotiated between a reluctant administration and the relevant Committee, and the executive adviser in question would show up and respond only to those questions on the negotiated list.

    This administration refuses to acknowledge any Congressional right of inquiry. If the Dems do nothing else in the few months remaining in this term, it would be to highlight how utterly radical and wrongheaded that two-fingered salute to Congress really is.

    Of course, that renaissance would come just in time for the GOP to use it against President Obama. One might be forgiven for thinking that the Dems don’t really have a clue. Harry Reid was a former boxer? It’s obvious why he gave that up and went into something uncompetitive like politics.

  2. earlofhuntingdon says:

    As your timelines always do, they highlight connections among seemingly unrelated events. Karl’s resignation comes perilously close to his subpoena deadline. As does ‘Fredo’s, whose employees issued these legal opinions about the reach of the President’s right to keep confidential things about which the legislature has a right to know. One might almost suspect they were hiding something.

  3. earlofhuntingdon says:

    Though, as always with Turdblossom, if a sentence uses the passive construction, “privilege has been asserted … similar instance,” you can never be entirely sure.

    That’s a useful reminder. Rove is a master at putting two things side by side, but never himself saying there’s a causal or logical relationship between them. If some unsuspecting CongressCritter or staffer comes by without a Ph.D. from where they know how to play football, well, Caveat Lector.

  4. MadDog says:

    …and MadDog had some interesting points to raise…

    I did? Where…swivels head rapidly to and fro…?

    Oh, and in regards to the excellent material in this post that you’ve linked to, I think it very clearly makes the/your point that if the DOJ had given an opinion to the WH on EP for Turdblossom’s Thursday subpoena, they would have been able and willing to trot it right out to Conyers.

    That the DOJ did no such thing makes it highly likely that no EP could or would be given, thus the “doubletalk” constructed by Fred Fielding with misleading referrals to “absolute immunity” and last year’s EP documentation.

    And Freddy’s slideways attempt to have Goldbars Luskin add cred by repeating Freddy’s wishful thinking.

    Can’t wait to hear how the DOJ responds to your inquiries!

      • MadDog says:

        As to your contributions, you’re the one who raised the proximity of the “resignations.”

        Well, it’s not as if I could juggle all those balls in the air and tie them together like you have. One, maybe two, but not dozens like you. *g*

        An addition or three you might add to your timeline above is the DOJ IG/OPR “questionaire” sent out on August 24, 2007 to hundreds of interviewees concerning the joint IG/OPR investigation:

        …regarding Monica Goodling’s and others’ hiring and other personnel decisions. In the course of our investigation, we learned that you may have been interviewed by or spoken with Ms. Goodling, Jan Williams, Angela Williamson, Kyle Sampson, or others in the Office of the Attorney General (OAG) in connection with a position at the Department…

        (My Bold)

        And from the WaPo on August 31, 2007:

        …Recipients are also asked to say whether White House aides participated in the interviews and to confirm if they were asked “what kind of conservative you were (law and order; social; fiscal).”…

        (My Bold)

        And of course, Senator Leahy’s letter on August 16, 2007 to DOJ Inspector General Glenn Fine requesting that the OIG begin an investigation into Fredo.

        Sheesh EW, that timeline could get a whole lot bigger. *g*

  5. KayInMaine says:

    Of course, the day Rove is supposed to show up to court is also the same day he conveniently has to be in Sweden! Imagine that. His attorney said Karl forgot to inform the House Judiciary Committee of his little trip. Uh huh. I see. Spit.

  6. masaccio says:

    EW, I read the Bradbury memo. It certainly looks like a blanket claim of absolute immunity for anyone meeting the category of “senior presidential advisers”, or “former senior presidential advisers”. Bradbury says

    The separation of powers principles that protect a president from compelled congressional testimony also apply to senior presidential advisers. … Thus, “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions.” fn omitted.

    The argument is quite thin, and fails to cite any court cases, other than one in a footnote relating to congressional aides. It does, however, cite a letter from Harry Truman from the New York Times, and a bunch of OLC opinions.

  7. Loo Hoo. says:

    Pobre cito:

    “I’m leaving on my own terms, and I’m leaving with a clear-eyed realism that this isn’t going to mean fewer investigations or subpoenas or weird comments by members of the Democratic caucus,” he said in an interview. “These guys are obsessed with me, and they think I’m a convenient and easy target to play to their base and raise money.”

    Even when he returns to Texas, Rove said, he expects to be under attack for his role in advising Bush. “I realize that some of the Democrats are Captain Ahab and I’m the great white whale,” he said. “I noticed the other day some Democratic staffers were quoted calling me the big fish. Well, I’m Moby-Dick and they’re after me.”

    Forgot about that from the WaPo link.

      • Loo Hoo. says:

        Guess not! In case anyone missed Sara from last thread:

        Sara July 12th, 2008 at 5:34 pm

        For several weeks I have been thinking — what was missing here in the FISA fight, and this effort to walk back the cat, find what went wrong, do Lessons Learned — Just excellent.

        Let me project out a little on Organization.

        I think what we need is something I will call the Fourth Amendment Society. It would be roughly modeled on the NRA, and their approach to the Second Amendment. On one level that is a membership organization of concerned Gun Owners, but on another level it is a Highly Effective PAC, that endorses and condemns candidates at all levels, provides some campaign contributions, (not as much as you might think), but it is a “Good Housekeeping Seal of Approval” for voters far beyond the membership of the NRA. What makes the NRA effective is the billboards and the broadsides that claim Candidate A wants to protect your Gun Rights, and Candidate B wants to give Government the right to take away your guns. We can do precisely the same thing with the Fourth Amendment.

        A Fourth Amendment Society properly structured, could be an Umbrella sort of organization which could coordinate with many other groups on a variety of issues — and yes, do press releases, perhaps create a web-site that would boil down issues such as FISA into Q & A’s that voters looking for less specialized and detailed information and debate could rely upon.

        My guess is that a Fourth Amendment Society could recruit Legal Faculty, Law School Students, with some ease. Likewise, because it would not be only about electorial politics — in fact it would I suspect be easy to make it very bi-partisian, it might not be all that difficult to raise a donor base that would work something like a membership fee, adequate to sustain a mostly volunteer, but perhaps partially staffed outfit.

        Anyone else have Ideas along this line???

  8. darclay says:

    I have questions, they may be stupid but I’m having a problem understanding some aspects of these cases:
    1. these are criminals at least their actions are
    2. we have probable cause to believe this
    3. we know who the actors are in all of this
    my question is are we pursuing this as a “real” criminal case. Is this being investigated as any law enforcement agency would do and if so, (you may not get to Rove and Cheney directly ) but is the FBI “leaning on” the peripheral actors in this as they would do say in a bank robbery?

    • seamus says:

      The problem with the FBI, etc, is that they are Executive Branch entities. Mukasey, as Attorney General, can stop any investigation cold, and he has been doing that since he was appointed. And all of law enforcement on the federal level has the same problem.

      • darclay says:

        thanks! Bet there are a lot of criminals sitting in jail wishing they had executive privilege.

  9. spoonful says:

    Curious how executive privilege can extend to an obviously illegal act such as obstruction of justice. The attorney-client privilege does not extend to discussions about the commission of illegal acts – why should executive privilege extend so far?

  10. darclay says:

    It appears to me after reading Bradbury’s memo that all the presidents seem to be trying to extend the powers of the executive branch which defies the way the founders set things up. I know the constitution is a living growing thing so to speak but looks closely like it growing a little lopsided.
    Thanks Janet

  11. PJEvans says:

    I wonder what all these timelines would look like if plotted together.

    Nah, you’d need 3-D to do it well. Or a really large wall.
    (Actually, I’m thinking date/time down one side, then columns for the various threads. It might be doable, and there might possibly be some use to it, but I don’t think it would be so useful as to make it worthwhile.)

    • watercarrier4diogenes says:

      Trying to visualize your idea, PJ. Makes me think of that data wall in Minority Report…

    • emptywheel says:

      I’ve thought about it, and I still haven’t rehung the African basket on the back wall of my office, from where it got taken down last election. Back then, I needed ward maps on the wall.

  12. MarkH says:

    Bradbury says

    The separation of powers principles that protect a president from compelled congressional testimony also apply to senior presidential advisers. … Thus, “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions.” fn omitted.

    What if Congress just wanted to question Rove about his political activities? What’s to prevent that?

    Where are the RNC e-mails?
    What was your political calculus on ‘getting’ Siegelman?
    Did you direct Jennings to give a political pep talk at Cookies Doans place?
    Did you have a hand in the USA firings because of the potential need for politically loyal people come election time?
    Do you know anything about the deaths of USAs or AUSAs?
    Did you know that using RNC computers for official government bidness was illegal?

    There is a lot of territory which is just about political activities.

  13. Leen says:

    Rep Cannon to Rep Sanchez “I take it your are awarE that he is on a long planed trip”

    Jesus Mary and Joseph help us! Can you imagine a blue collar individual making such a statement in response to a congressional subpoena? “Ummm Reps. I had a trip planned and your subpoena did not fit into my schedule” SLAM! The gavel would come down, the Sergeant of Arms would be at my or your door or at the airport to arrest your ass, throw you into prison and maybe throw away the keys.

    Enough All Ready ! ENOUGH! Arrest Karl’s yellow belly and lily white ass. Now.

    I am tired of hearing about equal justice under the law hogwash. DO IT!

    Karl Rove Fled The Country To Avoid Congressional Hearings (great clip)

    • emptywheel says:

      See, I disagree there. One of the reasons I like this video is, when faced what Rove claims is an issue in which he has little stake other than to listen to the President, he gets freaked out with one little question. ANd then Karl takes refuge behind this nice, fawning middle aged lady who, in any other circumstance, Karl would probably utterly disdain. Here, walk with me, he says, so he has someone to protect him from a few journalists.

      That’s pretty pathetic, IMO, and definitely not the stance of a guy who ISN’T afraid of testifying before Congress.

  14. bmaz says:

    He is very afraid of testifying under oath; he doesn’t appear to be particularly afraid of being compelled to do so.