David Iglesias Doesn’t Think Those Were Karl Rove’s “Official Duties,” Either

iglesiasbook.jpgYesterday, I posted a YouTube from Governor Siegelman responding to my question about whether he thought Rove’s involvement in Siegelman’s prosecution could possibly be part of Rove’s "official duties," as Fred Fielding has claimed.

I asked David Iglesias the same question–whether he thought the activities that the House Judiciary Committee subpoenaed Rove about in May really pertained to Rove’s "official duties." Iglesias doesn’t seem to think those are Rove’s "official duties" either. He points out how dangerous Fred Fielding’s claim is:

Claiming that the performance of "official duties" includes possible unlawful or criminal activity sets a dangerous new precedent, namely that as long as an advisor works in the West Wing of the White House, they have carte blanche to engage in any possible activity without being subject to the rule of law.

Iglesias is right. My gripe with the "official duties" claim is that, in the Siegelman case (which was explicitly named in Rove’s subpoena), Rove’s actions might be legal, so long as they weren’t "official duties" (because then they’d become a massive violation of the Hatch Act). But in Iglesias’ case, the actions are, by themselves, probably obstruction of justice (not to mention another massive violation of the Hatch Act). The actions are, by themselves, probably illegal.

Yet, strictly by deeming those activities part of Rove’s "official duties"–with no sanction or review from DOJ–Fielding claims Bush can grant Rove Absolute Immunity from testifying before Congress.

That is a dangerous precedent indeed.

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  1. BoxTurtle says:

    It’s not going to be too long before Rove will be reduced to pleading the 5th to keep from testifying.

    Boxturtle (He’s got a strong case, there. )

      • BoxTurtle says:

        I think our best hope for nailing Rove is that Bush’s pardon leaves a loophole. But I rather suspect he’s going to add a new dimension to the phrase “blanket pardon”.

        I hereby pardon Karl for anything and everything he has ever done, been accused of, or even considered in passing.

        Boxturtle (Crazy thing is, there’s no reason the above wouldn’t fly)

  2. al75 says:

    Iglesias makes the critical point, the degree to which “conservative outrage” has become a moral and political cover for a criminal racket.

    This is but one particularly toxic aspect of our poisoned political atmosphere. Rationality and realism are denounced as “liberal” with regard to foreign policy, global warming, stem cell research, evolution, etc.

    Where are we going now? Will the crimes of Rove et. al. be prosecuted? Will the ranks of the GOP be purged of the criminal element that seems to have been in control of the party from the early 90’s on?

    Or will Obama, if elected, be forced to “compromise”? The GOP racket has delivered some really big chits to powerful interests: oil, tobacco, the Saudis, the Israeli right, to name a few.

    It’s naive to believe that Obama can or will ignore these pressures. I hope that’s wrong.

  3. bobschacht says:

    But… didn’t KKKarl take an oath of office of loyalty to the President?
    I mean, isn’t that what Monica Goodling(?) told us they did?
    It sure would be inconvenient to let outsiders know what they were talking about in those inner sanctums, wouldn’t it? /s

    OK, I’m not so good at snark this morning.

    Bob in HI

    • MarkH says:

      But… didn’t KKKarl take an oath of office of loyalty to the President?
      I mean, isn’t that what Monica Goodling(?) told us they did?

      Just a few days ago I heard former AG John Ashcroft also say his oath or loyalty was to the President. Nobody flinched or asked a followup question about that. I think that even the slightest indication of intelligence, common sense and law abiding behavior is a relief, despite such oaths.

  4. JimWhite says:

    as long as an advisor works in the West Wing of the White House, they have carte blanche to engage in any possible activity without being subject to the rule of law.

    Oooh. Oooh. More ammunition for my wildcard entry in the pardon pool that Fielding will play the “absolute immunity” card instead.

  5. earlofhuntingdon says:

    As bad as covering for the Bush team’s misdemeanors and high crimes is that Fielding makes no pretense that his legal claims are well-founded or even reasonable, creative extensions of sound law. He obfuscates and delays while others make offers their opponents can’t refuse. Like Karl Rove and Mikey “Tom Hagen” Mukasey.

    • JimWhite says:

      Fielding makes no pretense that his legal claims are well-founded or even reasonable

      And that is precisely what is so wrong with sniveling apologists like Cass Sunstein. If you parse him carefully, Sunstein is saying there should be no prosecutions for actions taken when there was a legal opinion of some sort within the administration stating that the action was legal. Of course, as EW has documented so carefully, the Bush DOJ has functioned prolifically (with help from WH counsel) to produce just such coverage. Never mind that these legal claims are laughable and have been bounced from court far more often than not. Their reasoning states that if the legal cover been duly recorded then to prosecute actions taken under that cover is to criminalize differences in legal interpretation.

      Has anyone tried to work backwards to find just who originated this strategy? It seems to have been carefully orchestrated from the outset with the Sunstein-like argument planned in advance.

  6. SparklestheIguana says:

    The saddest thing of all is, the whole preemptive pardon thing is so unnecessary. Neither of our two presidential candidates would go after any of these lawbreakers. Come 2009, the relief at having Bush gone will be so overwhelming, both the parties – the Repubics and the Nutsuckers – will fall all over each other in an orgy of bipartisanship that will leave David Broder and Gwen Ifill foaming from all their orifices as they dance around the maypole.

  7. foothillsmike says:

    There is quite a bit of talk lately about blanket pardons. My understanding of the constitution is that “the president my grant pardons for offenses against the United States” How can a pardon be granted before an offence has been adjudicated. To grant a pardon is to recognize that an “offence” has been committed and the person receiving the pardon is guilty of it. The concept of blanket pardons just doesn’t compute but then again a lot of what has happened doesn’t compute.

    • BoxTurtle says:

      Nixon was pardoned for crimes for which he hadn’t even been charged and that held. Granted, it was never challenged.

      There are also some folks who were charged but never tried for the crime.

      I think the bottom line is that except for impeachment, the presidents power to pardon is absolute. I think Nixon’s pardon would have survived a court test.

      A creative lawyer might be able to make an impeachment connection if Kuchinich get’s farther than he is now, but that’d be brand new caselaw and I couldn’t predict how it would turn out.

      Boxturtle (No member of BushCo will ever answer to US law. ICJ is our best chance)

      • timbo says:

        I disagree, it is unclear whether or not the Impeachment Clause trumps the Pardon Claus (sic). The fact is that this Congress and the next are unlikely to unleash a bunch of impeachments on anyone. They’re scared creatures of politics unsure of how to behave outside of a cold war two party system. It’s pathetic.

        • BoxTurtle says:

          I agree, it’s unclear and could go either way. Like I said this would be brand new caselaw, this has never been tested before.

          The congressional leadership cannot permit an impeachment of Bush. If they did, their own rolls in various things would become known rather than just suspected.

          The constitution was not set up to deal with the situtation where all three branches are consipring to violate it.

          Boxturtle (The price of Bush being impeached is the Democrat leadership going down in flames, it seems a fair deal to me)

          • SparklestheIguana says:

            The constitution was not set up to deal with the situtation where all three branches are consipring to violate it.

            Fuck the founding fathers. They should have anticipated. Yeah, I’m pissed.

            • bobschacht says:

              The founding fathers did a darn good job. No system is fool-proof. No system is going to “run itself” without the participation of people. If the people who participate don’t do their jobs, then the people get what they deserve.

              Your anger is better directed at the Chief Democratic Collaborators, Speaker Pelosi, Sen. Rockefeller, and Rep Jane Harman, who didn’t uphold their oath of office when the Constitution was on the line, and who are now engaged in CYA. The Democratic Party has been badly served by this trio, and all three should be stripped of all seniority and committee chairs and relegated to the back benches along with the most junior members of Congress. Their complicity was and is shameful and places American Democracy at risk. If there comes an American Hitler, blame the neocons if you will, but don’t neglect the positions of infamy held by the leadership of the Democratic Party.

              Bob in HI

  8. brendanx says:

    emptywheel:

    In your “Smoking Gun” post from December you excerpt the OLC memo that Sheldon Whitehouse revealed, and it includes this:

    3. The Department of Justice is bound by the President’s legal determinations. [my emphasis]

    Isn’t that the operative principle, covering everything?

  9. BooRadley says:

    Great job. Iglesias’ quote carries such weight.

    digg

    Other short term strategy Congress might consider, subpoena Rove to talk about his all his WH activities that are not subject to EP. In addition to the rule of law, one thing you have emphasized frequently is the taxpayer side of this. We have a right to know what the hell Karl did every day that was a benefit to the American people. My guess is that Karl and gold bars wouldn’t like this kind of request, because there is next to NOTHING Karl did (that is traceable via phone calls, meetings, documentation) that he wants the American people to learn about. IIRC, when he talked to Matt Cooper, it was supposed to be about “welfare reform.” That’s a state issue, why was a federal employee working on a state issue? In particular, what states was he working with? Is there any documentation to support this, telephone calls, faxes, meetings …..

    Another option is to nail Karl down about his activities (not covered by EP) on certain days, weeks or months, during which activities about his politization of Justice are suspected. At the worst, this might reveal that the WH has no clue (won’t say) what Karl did for the American people.

  10. MichaelDG says:

    Claiming that the performance of “official duties” includes possible unlawful or criminal activity sets a dangerous new precedent…

    Something about this rankles me. As in: What is it about “precedent” that makes it infallible? If it’s been done badly, once, well then, that’s it…we’re stuck with it. Also related to Corporations are people “precedent”. I know, I know, the courts go by these, but when it’s this bad maybe some effort should be made to separate the bad from the good. But I guess there is no precedent for that.

    • skdadl says:

      I know, I know, the courts go by these, but when it’s this bad maybe some effort should be made to separate the bad from the good. But I guess there is no precedent for that.

      I feel your pain. My head hurts too. That is a very good description of how and why my head hurts, especially with FP @ 26 as supplement.

  11. CanuckStuckinMuck says:

    After 200-plus years of living in a fool’s paradise, this country is face to face with a ruler whose gall is unmitigated and is only exceeded by his disdain for the constitution. Checks and balances???? As if! The only checks are those that say “Pay to the order of” and the only balances are big ones in the bank accounts of corrupt politicians and judges.

  12. FrankProbst says:

    What’s bothersome about the “official duties” tripe is that a lot of people seem to be buying it. That’s what got the Plame civil suit thrown out. They’ve even got a nifty catch-phrase for it: “The criminalization of politics!” It isn’t, of course. It’s the criminalization of crime. Robbing a bank is illegal, and just because you use the company car to make your getaway doesn’t suddenly make it part of your “official duties”. The same is true for a lot of Rove’s antics: What he was doing was blatantly illegal, and the fact that he was doing it on the taxpayer’s dime makes it worse, not better, and certainly not within his “official duties”.

  13. Leen says:

    “they have carte blanche to engage in any possible activity without being subject to the rule of law.”

    Iglesias can say that again!

  14. Xenos says:

    Why can’t anyone do the math here??

    The subpoena is for communications (which would be clearly illegal) coordinating the illegal and corrupt prosecution of Siegelman. The president then asserts executive privilege, thereby admitting that the illegal, corrupt prosecution was directed by the President!

    QED. Bush is busted. File for impeachment on the issue of the prosecution, and on the illegal assertion of privilege. Take it straight to committee and force the Republican Senators to defend this criminal administration.

    THAT is how you get to a 61 vote majority. Try fighting for once!

    • bmaz says:

      Yeah, well, I think the weak link there is “the illegal and corrupt prosecution of Siegelman”. Marcy is right on this, right now I don’t think that statement is anything more that our wishful allegation. It may indeed be the case, but right now, there is not even a prima facie case established in this regard. Clearly a somewhat selective prosecution, and a shameful one, but we don’t have criminal and/or corrupt sufficiently established.

      • JThomason says:

        And in the end no matter how the evidence breaks in the Siegelman matter, overcoming the legal doctrines of prosecutorial discretion and prosecutorial immunity will drag this narrative and attempts to assign accountability down.

        • bmaz says:

          Exactly. It was a shithead prosecution, one that should cause a lifetime of ridicule and disrespect to those who brought it, but, so far, I haven’t seen illegality.

          • emptywheel says:

            Well, there was the misconduct of withholding the many drafts of coaching the prosecutors put their star witness through, so he could tell a consistent story.

            That said, if Karl did, as I’m betting, channel the info from Alabama thugs to DOJ, and if Karl did tell Noel Hillman to dedicate whatever resources necessary, then you’re into Hatch Act.

            • JThomason says:

              EW, did you reach a final conclusion concerning whether Rove’s purported statement about channeling resources to the prosecution was merely a nominal violation of Hatch or whether it would instead amount to a punishable violation?

            • bmaz says:

              As to prosecutors, misconduct, yes; illegality, eh, way thin re the witness sandpapering. As to Rover, criminal or civil Hatch Act violations? Aren’t our roles getting reversed here? Seems like yesterday that these were your arguments….

  15. JThomason says:

    In attempting to get Fitzgerald fired there is a colorable obstruction of justice claim. I would think that in the Siegleman matter there would have to be a showing of fraud or duress perpetrated by Rove before a colorable action could theoretically arise. And I am not sure even a quid pro quo involving continued employment would rise to being fairly characterized as duress. And even with fraudulent slanderous material being provided by Rove one would assume a prosecutor could assess this material. To be actionable the fraud would need to be carried over into the case in chief, something like a conspiracy to defraud the Court for which the prosecutor would probably be immune save disbarment but I think other participants would not enjoy this shield. And I really just bring this speculation up just to pique thought about where the real vulnerability lies in the Siegelman matter. Politically inspired prosecutions hardly pass the smell test. The thing about Rove’s activity is that it is so comprehensive and relatively out in the open compared to the quiet private deliberations which may have involved political considerations in the charging decisions of some prosecutor’s from time immemorial. The temptation certainly exists. The problem is that those who maintain private confidence in their own conduct as being ethical have little time for an adversary legal system, just to revisit the discussion we had a few months back about the evisceration of the tort system.

    I still think there is a legitimate inquiry into the need for regulating these kind of political executive arm contacts with the DOJ.

  16. JThomason says:

    Forgive my impatience. You yet speak through the arhive:

    Now, as we reluctantly concluded yesterday when we were discussing this, these are probably just civil Hatch Act violations, not criminal ones. And since the penalty for a civil Hatch Act violation is termination, there’s no way we can hold Rove accountable on these terms (though it still seems worthwhile to make the case).

    EW: The Significance of the Official Duties Claim, July 11, 2008.

  17. marksb says:

    I just don’t understand. I try and try and it just doesn’t compute.
    How can “official duties” negate personal responsibility for breaking the law? I know Nixon claimed it, and certainly it’s the operative theory in the current White House, but…
    I don’t get it. Can a presidential adviser or employee do anything?
    Like murder? Or fixing a legal proceeding?
    Doesn’t this go against the lessons of Nuremberg?
    I feel like I’ve fallen through the looking glass and it makes my head spin.

  18. JThomason says:

    The official duties claim is really just part and parcel of the absolute immunity claim which as we know is made up out of thin air as in can you say “stall.”

  19. victoria2dc says:

    I agree, it’s unclear and could go either way. Like I said this would be brand new caselaw, this has never been tested before.

    The congressional leadership cannot permit an impeachment of Bush. If they did, their own rolls in various things would become known rather than just suspected.

    The constitution was not set up to deal with the situtation where all three branches are consipring to violate it.

    Boxturtle (The price of Bush being impeached is the Democrat leadership going down in flames, it seems a fair deal to me)

    Pelosi and Harman’s roles are written into the record two times that I know of; once in the HJC hearing on June 10th (Addington/Yoo), and the other one was the HJC hearing on June 26th, the hearing with Doug Feith and Phillippe Sands.

    Everyone knows it except the media and the American people!