Is the Obama White House Caving (Again) on Presidential Privileges?

I had this post mostly written as a screed against Greg Craig, who appeared to be caving again on Obama’s stated principles on presidential privileges. But after checking with three data points, I’m not so sure what is going on.

I covered the first data point on Friday: John Conyers’ letter, dated Friday, to Bob Luskin, refusing to give Rove yet another delay until such time as he feels the whim to testify before HJC.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

The letter suggested that as of Friday, Conyers was unwilling to wait until the Appeals Court ruled on the Miers/Bolten (with Rove added) suit–he wanted to get a date with Rove for a week from Monday.

But then there was this report, revealing that Greg Craig is trying to make a deal.

White House lawyers and representatives for former president George W. Bush are engaged in discussions that could clear a path for congressional testimony by onetime Bush aide Karl Rove, three sources familiar with the talks said yesterday. 


"The president is very sympathetic to those who want to find out what happened," Craig said in a statement yesterday. "But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle."

There’s a CBS report on this statement–but the reporter seems to be confused as much by the underlying issues as by Craig’s ambivalence. Both, however, suggest that Craig is granting Rove’s position with entirely too much credibility. Further, it hints that Craig might try to defend the utterly ridiculous absolute immunity claim so as to not "weaken the institution of the presidency." If that is true, then Craig apparently believes relying on a Steven Bradbury opinion–he of legal opinions that have apparently been found bogus and unethical by OPR–that contradicts even William Rehnquist’s rather audacious claim is worth it to avoid "weaken[ing] the institution of the presidency." If Craig is really defending the absolute immunity claim here, he will match Alberto Gonzales’ cravenness as White House Counsel.

But then there’s this CQ report (h/t MadDog).

Justice Department lawyers have asked the D.C. Circuit for more time for defendants in a House Judiciary Committee lawsuit to file their opening brief in the appellate case.

The defendants’ opening brief was due Feb. 18, but they’ve asked the D.C. Circuit for an extension to March 4 — in part to give negotiations toward an out-of-court settlement a chance to bear fruit.

"Negotiations are now ongoing," Justice Department lawyers wrote in the motion, adding that "these tripartite discussions have been complicated and time-consuming," but that "the requested 14-day extension is appropriate to permit these negotiations an opportunity to succeed, potentially obviating the need for this Court to address the sensitive separation-of-powers questions presented in this appeal."


The D.C. Circuit is likely to grant the extension, for two reasons: House lawyers are okay with it; and when it comes to executive-legislative disputes, courts usually do everything they can to encourage the two sides to work things out on their own. [my emphasis]

Let’s work backwards here, from the news that house lawyers have agreed to the delay. That means they believe there’s an upside to waiting. Partly, that suggests Craig has already endorsed conceding enough that might convince the HJC lawyers to put aside several really important principles, including the principle that aides fired by a former president over a year a half ago should not be able to blow off Congress at his whim, a principle with which even this Court is likely to agree.

CQ also suggests that Holder’s DOJ asked for a delay only partly to give negotiations some time to move foward. I can’t find the motion (and I’m packing up for a road trip), but I do wonder what they other reasons for the delay are. The crappy CBS piece had said that Greg Craig was still reviewing "the question of executive privilege" (whatever that means).

A White House spokesman says the Counsel’s Office is still studying the question of executive privilege. 

So it may mean that Craig pushed the delay to assess how crappy Rove’s claim, in particular, is here. I’m also hoping that the delay may extend long enough for the molasses-like confirmation process to get around to Dawn Johnsen, who likely would have a thing or two to say about Steven Bradbury’s audacious claim of absolute immunity for fired aides of former Presidents. 

In other words, we don’t really know what this means until we get clarification on what other reasons Obama’s DOJ asked for that delay.

But I find one thing rather interesting. Conyers wrote his letter at a time when–clearly–this negotiation was fairly well advanced. In it, he spoke with renewed vigor of contempt charges.

Finally, conducting a voluntary deposition under these circumstances could simply serve to further delay matters beyond the nearly two years I have been waiting, since the Committee could not then be in a position to utilize contempt or other enforcement mechanisms in response to any improper refusal to answer questions.

That is, Conyers spoke with some anticipation of contempt at a time when he was in deep negotiations with Obama’s lawyers.

I’m trying to get some clarification on these issues. But until then, I’m not sure what to make of these negotiations.

40 replies
  1. Leen says:

    great watching these hearings and the stimulus vote with this group of older WWII vets and union gents. We keep discussing this claim that Obama and Holder have repeated “no one is above the law”. Almost all of these elder gents shrug, smirk and repeat “don’t kid yourself” that’s the way it has always been”

    I respond “I know”…but “I want to believe”

    So far Rove ,Cheney, Meiers, Addington, Wolfowitz etc ALL ABOVE THE LAW. We are watching

  2. lllphd says:

    fwiw, i’m inclined to believe this is good news, all in all. it just does not make any sense to me that obama’s position on executive privilege would be even parallel to bush’s, nor that on immunity, which is just ridiculous on its face.

    however, it does make sense to me that the new AG needs to get brought up to speed on all this, needs to weigh all the details and consequences and repercussions, etc., before just going off half-cocked in a way that might have really nasty backfire potential down the road. if obama has shown us nothing else in his hand, he does not shoot from the hip.

    that said, there appears to be yet another juicy morsel on holder’s plate, by way of scott horton:

    The Justice Department’s long-standing probe of corruption in connection with Halliburton’s Nigerian contracts—a matter of obvious and acute concern to Vice President Dick Cheney—was rushed to a final settlement just before the arrival of the new Obama team at Justice. Under the settlement Halliburton and its former subsidiary KBR are paying $579 million in fines.

    in addition to the revelations in from army private scott neely (also covered by horton) on just how unbelievably horrifying were the crimes at gitmo, i’d say this new AG is up to his eyeballs about now. the last thing he wants to do is misstep at this point.

    so we’ll have to wait and see….

    • bmaz says:

      The concepts are not all that hard. They should have been up to speed on this long before they took office. The Hallibuton mess you reference is mostly, thanks to the craven Bushies, done and over; and the stuff from that private is all old stuff that adds little, if anything, to the record. None of that is an excuse.

      what the Obama team needs to do is quit frustrating and trying to kill accountability at every pressure point they can find, and start listening to the people they represent who want accountability and freaking remember the oath to office they swore. That is what they ought to be doing; instead they relentlessly do the opposite.

      • BayStateLibrul says:

        You may be right, but I’m thinking it’s too early to tell (optimistic).
        I think Obama will do the right thingy….. maybe they are being too cautious…
        Yet… I’m hopeful…

      • lllphd says:

        bmaz, i’ll defer to you on the halliburton part (tho horton asks if holder will honor the settlement), but is there not a huge issue of state secrecy on most others? and if that’s true, how would holder have been up to speed on those cases right off the bat?

        you seem to feel they should have had all the details of all these cases completely covered so they could go in like the new sheriff in town and shoot ‘em up.

        do you really want the new AG to operate that way?

  3. Loo Hoo. says:

    I didn’t realize Dawn Johnson needed to be confirmed. Who else are we waiting on? (Or how many positions?) I assumed Obama/Holder would be able to choose their own people.

      • MadDog says:

        That also includes David Kris for head of DOJ’s National Security Divsion which handles all the FISA stuff, and I believe would include the ongoing cases of Al Haramain v. Bush and Hepting v. AT&T before Judge Vaughn Walker where State Secrets Privilege has been invoked.

        And with Dawn Johnson as head of the OLC, I believe her deputy Marty Lederman also requires Senate hearings and approval, so the White House has little recourse in getting more appropriate Executive Privilege opinions.

    • emptywheel says:

      At DOJ we’re also still waiting on Elana Kagen (Solicitor General)–though she has had her hearing–and people like David Kris for National Security AAG (he is one of the smartest people about warrantless wiretapping in the country).

      There are more, but I’d be really happy if I knew that Dawn Johnsen and David Kris were in on some of the other decisions that are moving along at a clip–most notably the cases before Vaughn Walker.

  4. bmaz says:

    Well, except all those you mention were supposedly working on all this as members of the justice transition team; so it is not like Obama is bereft of their counsel.

      • Peterr says:

        There is the little matter of security clearances, however. Folks may have been on the transition team, with a broad general security clearance, but until they are confirmed, they are not going to be read in on the most sensitive and critical items.

        • bmaz says:

          Shouldn’t need any security clearance above that to work on the subpoenas/privilege issues. Plus, Kris has had that clearance before, he should be easy to recertify. I don’t think the holdup is security clearances, I think the holdup is the Senate; why, I don’t know, but it seems intentional at some level.

          • Peterr says:

            Given the kinds of things that Rove et al. had access to, I would think that the whole security clearance issue would be highly relevant.

            It doesn’t take a security clearance to politicize the DOJ, but if the argument is “this guy is so central to helping the president function, including dealing with all Teh Evil Terrarists, that he has to be able to claim EP,” then the attorney dealing with the claim at DOJ has to have the clearances to be able to pass judgment on the claim.

            • bmaz says:

              Yeah, but the subpoenas are for fairly narrow things that don’t involve national security matters, and the record behind the appeal in the DCCCA is completely public and speaks for itself. None of the concerns you reference have been alleged or pled. So I am not buying into that.

          • emptywheel says:

            Kris held top-secret classification.

            But he was not fully read into “the program,” I don’t think.

            Also, on teh Rove issue, I don’t know that anyone can say they had reviewed the Rove and Miers stuff in detail. Plus, they don’t know what it is that Bush is hiding. At the very least, if I were GregCraig, I’d ask for what is effectively a privilege log before I’d sign off on defending this crap.

          • lllphd says:

            duh. the repugs are all about gumming up the works. that much seems abundantly clear.

            and i’m not sure how it works, but a job that requires security clearance may not allow you to even show up without it.

            • bmaz says:

              It is not the Republicans, it is Reid and Obama and Leahy. They control the flow; this has little, if anything, to do with the Goopers, don’t blame them. We discussed above, I really don’t think security clearances, at least for the top people are the issue in the least. This is on the Dem leadership, and it is not occurring by accident, they are gaming this to the disadvantage of accountability. Or so i suggest anyway.

    • lllphd says:

      that is, they were working on whatever information they had access to.

      i know and i agree, we already know enough to string these guys up from here to next sunday. but you know as a lawyer, and a damn good one i have no doubt, that you can’t go into a case if you haven’t reviewed all the info there is available to you.

      what am i missing?

      • bmaz says:

        My commenat at 3 above was directed at the subpoenas issue; and, yes, in light of the completely public files and crucial issues, I did, and do, absolutely expect them to walk in and be ready to play.

  5. MadDog says:

    I’m trying to get some clarification on these issues. But until then, I’m not sure what to make of these negotiations.

    Could be that Conyer’s latest salvo letter to Luskin was meant to move those negotiations about Rove’s testimony along.

    I can’t say that Craig’s statements help Conyers. Seems to be more of an assist to Turdblossom and Goldbars.

    And just what part the DOJ lawyers are playing in the negotiations is a mystery to me. Are they for or against?

    • lllphd says:

      or could craig’s comment have served to give rove and luskin a false sense of confidence?

      i don’t read any commitment in there beyond an encouragement for everyone to come to the table. we all know who out there has not even bothered to come to the room, let alone the table; craig showed no interest in smacking these guys up side the head with the truth of their contempt.

      that’s fine; there’s a lot to be said for giving parties in a negotiation some avenues of grace, without humiliation.

      i know, that seems outrageous for the likes of rove and cheney and their ilk. but hey, recall that this is the very same argument cheney made against obama’s decision to close gitmo; “he’d rather read them their rights and be polite” and words to that effect.

      yup; that’s who we are.

  6. behindthefall says:

    I’ve been wondering whether PBHO, like VPJB, does actually want to reverse the tendency to make the Executive Branch (and the “Fourth Branch”!) into a re-do of Old Europe’s absolutist monarchies. But, that he has to look as though he is intent on “preserving the power of the institution” (even though that power is at present excessive), because there are lot of loud voices out there which, for some unknown reason, get their jollies from the thought of a “strong Presidency”, un-Constitutional though it may be. Perhaps there will be signs of a concealed retreat. He would certainly be doing us all a BIG favor if he could leave office having made certain that the Republican campaign toward Monarchy would never rise again.

    • lllphd says:

      i agree; i’ve been struck by those ’strong presidency’ voices, too. they seem to coincide with the grave threats of tourists and the ticking bomb scenarios.

  7. WilliamOckham says:

    Here’s the operative phrase in Craig’s statement:

    he [Obama] is urging both sides of this to settle.

    Nobody (except for Addington) really wants a final court ruling on this issue. The courts hate choosing between the executive and legislative branches on privilege claims. Obama doesn’t want to protect Rove or have to figure out how to walk back the ridiculous Bushie claims of executive privilege without taking more flak on the right. Even worse, from Obama’s point of view would be withdrawing and then having a court rule that executive privilege really can be invoked by an ex-President(imagine what that does to torture investigations). Conyers doesn’t want to win against Obama or lose to Rove. Rove knows that his chances of winning outright are pretty slim (he can’t count on the Obama DOJ to protect him and I don’t think he can be really sure that Bush would push the issue now that Cheney’s not pulling the strings).

    The only way this doesn’t get settled is if Rove figures that’s his only way of avoiding doing time.

    • bmaz says:

      Oh, it will get settled all right. In fact it was always pretty predicable I suppose. My problem with this is that I think the motivations for driving the settlement are not the merits, but an Obama/Craig determination to make all this stuff go away, and I think Craig will use this as a vehicle to accomplish just that. In fact I think you can bet on it.

      • WilliamOckham says:

        I don’t see how settling this dispute makes anything go away. Conyers knows he’s in the best negotiating position. He’s been waiting too long to roast Rove over an open spit. He also knows that Waxman’s not in charge of the Oversight Committee anymore, so the spotlight will be all for the HJC. I suspect he and Leahy made a deal. Leahy gets the torture memo dudes and Conyers gets Rove.

        People who are looking for Obama to fix all this stuff are looking in the wrong place. This is, and always has been, Congress’s job.

    • emptywheel says:

      I’ve got two thoughts about that.

      First, I think Conyers wants a ruling on AI at the least. Now he could get it from Obama, to a degree,m if they withdraw the ruling. But they do want that one off the books both for now and future and they’ll take the win against Obama to do it.

      Second, i think when Obama released his much-heralded EO on EP (and Presidential Records) he was doing two things. First, preventing Bush from protecting his own records from Obama. But also to reassert EP in the hands of the Administration, rather than courts and Congress. I suspected then–and suspect more now–that Obama, Craig, and Holder were trying to take this out of the courts and into their own WH to control the situation.

      • bmaz says:

        Oh I agree with that wholeheartedly; but, I think along the way, they are also trying very hard to put a lid on all the all the inspecting, investigating and accountability seeking into the Bush years.

          • bmaz says:

            They have consistently and relentlessly said they do not want to delve into the past and want to move forward. Their nominees and leaders keep stating that at every turn, and their acts since taking office support that one hundred percent.

      • Peterr says:

        Between you and WO @25, we’re at the heart of EP arguments.

        Yes, Team Obama wants to control the situation within the executive branch, and yes, part of Congress’ job is to be a check on the Executive.

        Personally, I think WO is on target here. Congress is better suited to be the investigative vehicle, in that the Obama WH has its own vested interests in protecting executive powers. Also, the WAG of a deal between Leahy and Conyers strikes me as such an elegantly DC solution to this situation that it’s hard to imagine that they haven’t made this deal.

        OTOH, if they haven’t made this deal, perhaps Leahy or Conyers needs to inquire as to WO’s availability to serve on the Judiciary committee staff in the appropriate body. “Now why didn’t we think of that?”

        • lllphd says:

          it’s these complications and implications beyond the facts of the cases themselves that i think obama is exquisitely sensitive to. and only time will reveal to us what is going on here.

          in any case, proceeding with great care makes tremendous sense.

  8. eagleye says:

    I wonder if the Obama administration is playing this carefully, by getting their stimulus package finalized and perhaps passing a few other big pieces of legislation in the early going, before going after the lawbreakers in the Bush administration? Obama absolutely needs a few GOP moderates on his side for these crucial votes, so perhaps he has calculated that he doesn’t want to be on the warpath just yet….

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