The HJC Agreement with Rove and Miers

Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Mind you the CIA Leak Case shows they’ll do anything to protect President Bush’s involvement in crime, so why should this be different? Plus this does count as privilege.

In addition, the former Administration will conduct a timely review to identify: (1) any documents sent to/from White House personnel to/from third parties other than Department of Justice personnel; and (2) any documents referenced in the aforementioned Scudder Memorandum or OLC chronologies shown to the Committee. The former Administration will consider making some or all of the above material available to the Committee (in the same manner as the other post-March 8, 2007 documents described above). This process will be completed and the issue resolved prior to the interviews described in this agreement.

I like this one. I suspect it’s going to be a key issue in Siegelman and–if they’re allowed to pursue the Pat Fitz attempted firing–that too. 

Documents and their contents will remain confidential through the time of completion of the last interview. At that time, copies of documents provided to the Committee and/or contents of documents reviewed by the Committee may be made public. The transcripts discussed above may be made public after the completion of the last interview and after counsel has had a reasonable opportunity to review them for accuracy. No document or part of any document and no description or partial description of any document shall be disclosed to any other person until after the completion of the last interview.

So we get transcripts and documents after the interviews are over. No one hold your breath.

61 replies
  1. JimWhite says:

    The former Administration will consider making some or all of the above material available to the Committee

    No likee. Much better: “will make all”.

  2. AlbertFall says:

    I like this being done off-camera. No grandstanding–by Reps or Dems–just staff grinding out the facts.

    This kind of set up produced the information on the Nixon White House tapes from Alexander Butterfield–and it gave Congress the chance to provide a dramatic on-camera reveal.

    I hope the question of Fitz being on the chopping block is interpreted expansively–the details of how KKKarl avoided indictment in Plamegate would be fascinating, including how he managed to “remember” some conversations just ahead of the charges coming down.

  3. AlbertFall says:

    Inquiry into the systematic mismanagement of DOJ in the Bush years is still missing.

    I, for one, and still furious about the tabacco case in which the prosecutor was forced to bid down the judgment from $100m to a much lower number on instructions from DOJ higher ups.

    I would love KKKarl to talk about that one.

  4. bmaz says:

    And thus the gloss comes off of yesterday’s rose. There are too many potential bottlenecks, and the ability to impose them at critical points to prevalent. This is a recipe for getting a little here and there and not much overall. Don’t like it. A constrained investigation is a materially compromised and weakened investigation.

    • looseheadprop says:

      I don’t like ANYTHING about this agreement. It would be better to leave Rove and Miers out there and either slap them with contempt, or leave their continued non comliance as an open wound.

      This is the worst of both worlds. It getd Rove and Miers off the hook, alows Bushco to say they cooperated and gets the investiagtion NOTHING that is complete.

      • emptywheel says:

        Does that mean you don’t want to be the unpredictable questioner anymore? We were pitching you to accompany bad cop (me) and worser cop (bmaz) to the deposition yesterday.

    • WilliamOckham says:

      No, you’re looking at it the wrong way. This is a continuing opportunity for Conyers to keep turning the screws. There’s already enough there about Iglesias to start a real prosecution. This process gives Obama some breathing room to take care of his higher priorities; it gives Conyers the chance to make some headlines; and it gives Rove & Co. the hope of getting away with it.

      It’ll be interesting to see what happens if something really surprising turns up.

        • WilliamOckham says:

          I don’t really disagree with what you’ve said. I just think you’re missing the change in power relationships that this agreement represents. I’m sure Rove, Bush, and their lawyers are thinking they are off the hook for exactly the reasons you lay out. But the HJC really only needed to establish their right to get the information. Ultimately, any real sanctions will have to come from the Obama DOJ. Those can’t happen without some public opinion leadership, which is what Conyers needs to provide. His ability to do that isn’t contingent on getting a ‘good’ investigation, just an investigation. You’re thinking like a lawyer. I’m thinking like a public citizen. We have to ‘change the tone in Washington’ to accomodate the idea of punishing criminals who happen to have resided in the WH.

  5. ApacheTrout says:

    but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this])

    I read this as saying that none, other than William Kelley, are subject to this agreement. If others are to be interviewed, they would need to be subpoenaed separately. Please correct me if I’m interpreting this wrong.

    • emptywheel says:

      No. I think they wanted to prevent HJC from going back for seconds. So say we learn that Chris Oprison was even more involved than we know, we don’t get to go back and subpoena him.

        • emptywheel says:

          Yeah, but I think he was actually new to WHCO in 2006, so he can’t be THAT involved.

          I just used his name because we know he is involved.

          Scott Jennings is probably a better example, as a long time henchman of Rove.

          • bmaz says:

            True, but Oprison’s name was on some very interesting emails (redacted and otherwise). Good point about Jennings, you are right. And the same problems intrude.

      • ApacheTrout says:

        Are you saying that this agreement ends all further witness interviews? That agreement would be terribly limiting then.

  6. acquarius74 says:

    Thank you, Marcy. IMHO, Rove will lie; oath means nothing to him. He can be expected to point the opposite direction from the facts.

    Too much excluded here; how can these events be correctly analyzed without the trail leading to the OLC/DOJ, the authorities upon which many actions rested ? IANAL, so maybe what I don’t know or understand is again the basis of my statements.

    Seems to me that again the goal is #1 protect Bush/Co and OLC/DOJ, #2 conform all responses to HJC to protect goal #1.

    I’d be most happy to change my viewpoint on this.

  7. Mary says:

    Here’s the problem I see with a blanket limitation on communications with the President.

    Under 28 USC 541, the only one with power to remove USAttys is the President. Tony Snow made it clear in public statement on behalf of Bush that Bush did not make any recommendations for firing.

    Congress has given a power solely to the President. There is nothing to indicate that the President ever exercised that power, and the public statement by his spokesperson is directly to the contrary.

    So – if you allow a blanket privilege on communications with the President, how does Congress ever get to a resolution of whether or not the removals were done validly under Sec 541 – which involved Presidential participation? How do you have a Statute giving only the President the power to remove, but then tell Congress they have to remain in a state of ignorance as to whether or not he exercised that power bc no one can testify as to whether or not he said, “I’ve decided to rid myself of some pesky USAs right here and now” vs an angst filled “will no one rid me of them there pesky USAs?”

    Bc I think before you even get to whether or not the power was exercised for illegal purposes, you have to get to whether or not the power was exercised. By the President. Whose spokesperson said that he did not make any firing recommendations.

    That’s why Bush always looked so pleased with himself later, after Fielding got hold of him. He had really screwed up when he put out those immediate reaction statements, but then I’m thinking Fielding must have told him to rectify it all by going around saying, later, that USAs serve at his pleasure And when he did, not one damned reporter asked him, “Mr. President, does that mean you were the one who decided to fire the USAs?”

    Oh well, it is what it is.

    • bmaz says:

      This is what I was alluding to earlier. The thing is littered with this type of bottleneck. And to get around a hard assertion of any of them individually (not to mention when they pile up on top of each other) you have to go back and be willing to relitigate the whole pile of crap. What was just waived to make this crappola agreement. By that point there will never be enough appetite remaining to do that.

      Will there be a couple of good nuggets that come out of this agreement? Probably. Will there be anything really useful or concrete to the plethora of core issues and concerns behind the investigation? Not a chance in hell.

    • JLML says:

      I know this is hopelessly simplistic but since:

      “Under 28 USC 541, the only one with power to remove USAttys is the President” and we know that the attorneys were removed, wouldn’t that indicate that the President exercised that power? What evidence is needed? If it was done by his administration exercising Executive authority then it was done by him unless he tells us otherwise. And if it was otherwise and he didn’t rectify it then wouldn’t he still be legally responsible?

    • MarkH says:

      Bc I think before you even get to whether or not the power was exercised for illegal purposes, you have to get to whether or not the power was exercised. By the President. Whose spokesperson said that he did not make any firing recommendations.

      Provide an all inclusive list of persons who recommended or did place names on the list of USAs to be fired or considered for firing.

      Did the President fire any USAs?

      Who, if not the President, did fire any USAs?

      Who assigned the task of creating a list of USAs to be considered for firing or for firing?

      Who created the order to create the list?

      Was there a plan to prosecute, smear or otherwise make life difficult for governors or other politicians?

      Who created that policy or plan to execute that plan?

  8. Mary says:

    I hope they will be laying the foundation to get around the claims of privilege with lots of this kind of question (better versed, but this shows where it is going)

    Is there any way to determine whether or not the removal took place at the recommendation of the President (and so was legal or illegal) without providing Congress with access to some internal discussions and/or without obtaining testimony from the President?

  9. bobschacht says:

    I agree with bmaz @6. This is a compromised partial limited hangout. I don’t see why Rove or Miers should get such dainty treatment. Haul their asses in and grill’em after reading them their Miranda rights, just like anyone else.

    Bob in HI

    • acquarius74 says:

      Hi Bob. I still think Conyers should have slapped Rove with a fine of $5000 per day (or the limit) for contempt of Congress until he got himself into there to testify. No limitations to be granted on the subject matter to be covered in his testimony (worthless and misleading as I suspect it will be).

      Why didn’t Conyers take that route?

  10. DWBartoo says:


    We ain’t gettin’ much …?

    Who could have imagined.

    What power(?) has determined the course that we see laid out before us?


    Bu$h and Obama?

    Phalanxes of lawyers? Yoo, too?

    It is rather obvious that the ‘powers that be’ have no intention whatever of allowing clarity or honesty to prevail.

    If we find ‘this’ process too little and toothless, acquiescing to the ‘dark side’ without a ‘fight’, then we might assume that Conyers could possibly feel or think the same thing?

    Apparently not.

    This pipsqueak kabuki, in which drama Conyers will be a major ‘player’, will be paraded about as a ‘victory’ for ‘the law and ‘justice’, to be seen and understood as part and parcel of the political push for ‘truth’ and reconciliation [as opposed to genuine AND deserved consequence, of a serious sort, and the smack-down of ‘forces’, ‘entities’ and individuals whose behavior is inimical to our (supposed) democracy].

    It is not.

    We are witnessing ‘bi-partisanship at its best.

    The only ‘reconciliation’ desired, ultimately, by the Political Cla$$ is that the two parties can, more quickly, easily (and profitably) get back to manipulating us with the larger kabuki.

    And that, is the ‘truth’.

  11. Arbusto says:

    As much as Conyers says he’s mad as hell and won’t take it anymore, I think the undertone here and in Congress in general is to avoid the work and dirt necessary to do their job. Last night on Olbermann , Keith all but kissed Whithouses ass even though Whitehouse ducked, bobbed and weaved when asked softball questions about investigating and prosecution’s of the prior Regime. Leahy, on Maddows show likewise bobbed and weaved when Rachel asked direct honest questions about accountability. He was a Prosecutor you know; he’ll tell you if you didn’t ask. So Obama the House and Senate want prior criminality forgotten, or if brought to light, the light will put the fear of god into future Liddys, Abrams, Libbys, Roves, Cheneys, even though they know there’s little or no accountability for our leaders, employees or agents who break the law.

  12. dakine01 says:

    Potential question for Rover?

    Did you at any time, after the elections in 2004, direct anyone or suggest to anyone or ask anyone in the White House or DoJ that they add specific names to lists of USAs to be fired?

    To whom did you make this direction/request/suggestion?

  13. SaltinWound says:

    If they found evidence of a crime, would the ban on asking about communications with the President still be absolute? If so, that seems like a lot to give up.

  14. brendanx says:

    What is the justification for providing a view of, but not copies of, things like the Scudder Memorandum? Just to make things harder?

  15. brendanx says:

    the former Administration will conduct a timely review…

    Who, specifically, are “the former Administration” here?

    • DWBartoo says:

      That is an excellent question.

      Just what (or whom) constitutes, legally, the ‘former Administration’ as regards this case?

      Certainly it is not Bu$h, who doubtless will not need to trouble his pretty little head over these matters, and while Cheney might be expected to try to ‘influence’ what goes on, he will not be visible, leaving us only with, essentially, nameless, faceless bureaucrats, minor underlings and … lawyers.

      Therefore who would be held accountable if the ‘former Administration’ does not comply ‘fully’?

      At a guess: no one.

      It would appear that the ‘rule of law’ ain’t what we thought it was.

      Seriously, until there is evidence to the contrary, the concept of ‘the rule law’, in this nation, at this time, is fast approaching that ‘condition’ which is best summed up as being as ‘joke’. And a poor one, at that.

    • Dismayed says:

      Former Administration is, of course, the guys who will edit out anything factual and within the scope that they really wish hadn’t been said.

      It’s the clean up clause to this dog and pony show. The broom and dustpan review.

  16. AZ Matt says:

    A question for Rove, hmmm… . How many times did you have sexual relations with Mr. Gannon/Guckert in the White House or outside of it? And who else was involved?

    This question will get more coverage than any other!

    • wavpeac says:

      Just one little bj…it’d be extra nice if it took place in the oval office. We wouldn’t have to prove treason. (we could all rest assured that the last 20% of die hard, I don’t read the news, have my fingers in my ears, love war and hate peace homophobes would never vote republican again). Well since I am on a day dreaming don’t have a job, roll… what if…we found out that Gannon Guckert really was Johnny Gosch? We might get our democracy back. (sad isn’t it?)

    • bobschacht says:

      A question for Rove, hmmm… . How many times did you have sexual relations with Mr. Gannon/Guckert in the White House or outside of it? And who else was involved?

      Yeah, but you gotta learn to ask the question correctly:

      “When did you stop having sexual relations with Mr. Gannon/Guckert in the White House or outside of it? And who else was involved? “

      There. Fixed.

      Bob in HI

    • druidity36 says:

      Someone ought to start a website called “Questions for Karl” dot com.

      There are some good minds out there, i’m sure they/we could come up with some doozies…

  17. AZ Matt says:

    From HuffPo:
    OINK! Oink!!

    In an interview with Fox News, former White House adviser Karl Rove said he expected to be devoured by Democrats when he testifies before the House Judiciary Committee.

    Speaking of former Bush aides Harriet Miers and Josh Bolten, Rove said,”I understand they may be the hors d’oeuvres, but I’m the main course. Some Democrats would love to have me barbecued.” Rove and Miers have both agreed to testify.

    Pork bellies to BBQ or deep-fry!

    • emptywheel says:

      Of course, that’s BS, not least bc Bolten was never asked to testify, just turn over docs. But he is right in that the obsession to get Rove above all else may have clouded some discretion on this agreement.

  18. Nanz says:

    Also ask, “Is Joe the plumber Gannon/Guckert?”

    Getting ready for some carnitas burritos— shredded pork with spicy condiments.

  19. perris says:

    am surprised bush didn’t press his priviledge and leave it to the roberts court

    I might be under the impression he is not happy with rove

  20. BoxTurtle says:

    My first question for Rove would be: Have you seen a Doctor for the loss of memory you’re about to experience?

    Boxturtle (Expected answer: I don’t recall)

  21. Mary says:

    33 – There are two levels of potential “illegality” involving the firing of the USAs (well, more really, but let’s stick with two).

    The first would be that someone with no authority fired them. Let’s say you own real property in your individual right. Everyone knows that I work for you as a sale clerk at your Piggly Wiggly (or even as your lawyer, without a power of attorney). If I go out and give a deed on your property to EW, signing off myself on that – does she own the property? Nope, bc I had no authority to make that transfer and even a little it of due diligence on her part would show that I wasn’t in the chain of title to make that transfer. That would mean that the deed is a void act – it conveys what I don’t have.

    A more to the point example involves the delegations Gonzales wanted to make of his powers as AG to Sampson and Goodling – his secret delegations. The OLC had issued an opinion on a similar appointments issue and said it was shakey ground whether there could be delegations of *hiring* power to non-cabinet officer or not, but at a minimum names would have to be submitted to him for actual approval first and then actions would have to be taken in his name. That involved a situation where Congress had not, by statute, designated only the President to act and so the authority was deemed held by the President or his cabinet level offficers.

    Under the plan and delegation of the authority, even the second- and third-highest-ranking political appointees in the Justice Department — the deputy attorney general and the associate attorney general — would no longer have final authority to staff their own offices.

    Justice Department records indicate that while the order was being drafted, McNulty and other senior department officials were at times purposely kept out of the loop.

    Once Gonzales had the final authority, however, another barrier stood in the way: The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional. Corts so informed Gonzales in a February 24, 2006, memo: “The Office of Legal Counsel (OLC) advises that permitting the Attorney General’s delegates to approve [some] appointments … would be inconsistent” with the appointments clause of the Constitution. The “excepting clause” of the Constitution requires the president alone to exercise the appointment power, or his Cabinet officers, who are appointees themselves.

    So the President very possibly could have delegated his power to fire to someone, but if he did, we have yet to hear to whom he delegated and whether they made further delegations. Actually, no one wants to say who ok’d the final lists for removal

    If Bush never made an actual delegation and/or never was presented with a list and never formally approved the firings, then you have a mess (and IIRC, some defense lawyers have tried to leap on that issue). The mess being that if the USAs were removed illegally, by someone with no actual authority, then you have a real question as to whether or not their successors are serving validly. That’s one big can of worms.

    So no, I don’t think you can just assume that the President made a delegation or that the President approved of the lists for firing. Plus, I think this is the issue that gets you past privilege initially – if the statute requires that the President remove, and the President’s public statements were that he was not involved in the recommendations to remove, then Congress cannot determine whether or not its statute was complied with unless someone has to start to explain the Presidential input into the process.

    A second area, which is the one that will and should get most of the attention (but which doesn’t get you past privilege as easily imo) is the issue of the actual reasons behind each of the firings, assuming that the firings complied with statutory, Constitutional and delegated authorities. That’s the real meat, but I think it’s harder to make the case to get past privilege, bc you have to have enough to convince the court, without getting you past privilege, that there is probable cause that the firings were for an illegal purpose. To me, the fact that you need to get past privilege to actually establish the facts that the firings were prima facie regular is an easier sell. From that, you can get to more.

    I do think on Siegelman, there is some hope even under the deal cut, bc it sounds like a lot of the shenanigans may have not involved direct conversations with the President anyway. That’s not to say that Rove won’t fib and won’t, after all this time and all his access to info from Martin et al, have a nicely nicely fib together by now. But it does give him a lot of areas for questions where he can make misteps that will bite him later. imo,fwiw

  22. Mary says:

    Complete OT and not breaking –

    A brief story by the UK Telegraph from Feb 28 on Binyam Mohamed’s military lawyer, Yvonne Bradely.…..story.html

    one of the things that infuriates me about Obama’s position as he carries the flag forward is that he is making a mockery out of the people who actually did the right thing.

    There’s no way it can be easy for this lawyer to have pushed so hard on this case, and the end run is that yes, her client gets out of the hellhole, but her government continues to glorify what was done.

    • DWBartoo says:

      We certainly are in a ‘glorious’ phase of our ‘history’.

      At least, apparently, so far as most of the Political Cla$$ is concerned.

      One wonders just how profitable these last eight years have been for that class. How much have they ‘invested’ in the assault on reason, justice and humanity and what have they gotten in ‘return’?

      Oh I forgot.

      That is a secret.

      National security and all that …

      Thank you, Mary, yet again, for helping us make what sense can be made of today’s American ‘reality’.

      • Leen says:

        The last eight years
        Billions for oil industry
        Billions for defense
        Billions for Wall Street


  23. rwcole says:

    It seems unlikely that this testimony will do much to move the ball toward prosecution. If things got close, Rover would plead the fifth. That’s about the biggest news I anticipate.

  24. sumpls says:

    Why is anyone protecting Rove?
    Seems off like old fish, like Hughley being canceled, like everything else happening lately.
    Some say it’s their party imploding. But it seems far more serious than that.
    Like Mad Maddy’s special privileges though he stole 50 million from people. Like DeLay still walking around though convicted. The lawlessness is staggering to me, literally. Surely Someone besides me knows that Rove needs to go down. He’s been begging to get caught. Laughing at us/congress/the senate. I conclude that a vast part of the country is mentally ill and they are in Washington or in the penthouses or arresting poor people to abuse them and jail them for petty crimes.
    If not for FDL and others, we’d have no voice even after the election.

  25. timbo says:

    I’d say that if Rove pleads the 5th that will be a miscalculation all around of the highest order. Basically, if that happens, everyone involved is going to have egg on their face big-time. And there will be prosecutions at that point.

    Frankly, such a plea would indicate that the Congress did not do it’s job two years ago and that the White House and the people in OWHC might well be involved in a cover-up…certainly many of them will probably voluntarily testify to Congress, possibly with limited immunity, if Rove takes the 5th.

    Congresses popularity will take another blow…and so will Obama’s…for having ironed out an agreement that only got us to know that two years earlier, the legal system failed. Of course, if Rove does take the 5th, you can bet that the Obama administration will start becoming much more cooperative with Congress on this matter…and probably others having to do with Rove and Gonzalez’s finger prints on various other polices and actions taken during the Bush administration.

    So, I doubt Karl is going to plead the 5th anytime soon…although…hmm…

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