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Breaking: Turdblossom and Harriet to Testify

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And, just as importantly, the notion of Absolute Immunity dies a well-deserved death (via email).

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

Chairman Conyers issued the following statement:

"I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

You think maybe Rove’s lost his 5 time’s a charge charm with perjury?

Update on timing: The Committee is going to get the documents it had requested and read them before they do the interviews with Harriet and Karl. And the interviews will be done by staffers, with the option of doing a public hearing with questions from Congresspersons if that seems useful. So the timing for the moment seems to be driven by how quickly they get documents. 

Update: Pelosi does a victory dance for the authority of Article I (via email):

The agreement for Karl Rove and Harriet Miers to testify upholds a fundamental principle: no one is above the law and Congressional subpoenas must be complied with.

As public officials, we take an oath of office to uphold the Constitution. It is the institutional duty of Congress — as an independent branch — to Read more →

Will the House Hold Rove in Contempt before March 4?

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Just before I disappeared for a week, John Conyers sent Karl Rove a sternly-worded letter insisting Rove show up for his deposition today.

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.

Well, the blogger formerly known as Kagro X reports that Rove indeed blew off the House Judiciary Committee (for what must be the third or fourth time) today (h/t Petrocelli).

I find that interesting for several reasons. First, remember that Conyers sent that sternly-worded letter at a point when HJC was already negotiating with the Obama White House about what to do with the Miers/Bolten suit.  

Next, consider some of the other language Conyers used in his sternly-worded letter.

Finally, conducting a voluntary deposition under these circumstances [limiting testimony to the Siegelman witch hunt and excluding the US Attorney firings and other politicization issues] 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. [my emphasis]

Conyers was clearly thinking about contempt when he wrote that letter–at a time when he was in negotiations on the Miers/Bolten suit.

Finally, as I reported earlier, Obama got the second week of his requested two week delay for his brief on the Miers/Bolten suit. HJC agreed to go along with that delay.

Now, I have no reason (besides noting the coincident dates) to believe that there’s a connection between the additional week extension on the Appeals Court brief and any response to Rove’s latest contempt for an HJC subpoena.

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And Now the Appeals Court Jumps in the Fray

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This is weird. The DC Appeals Court apparently doesn’t want to give Obama time to make a deal between Bush’s minions and the House Judiciary Committee.

After specifically invoking the benefit of "permitting the new President"… "to express [his] views on the merits of the lawsuit" between the House Judiciary Committee and Harriet Miers and John Bolten last fall when it stayed Judge Bates’ ruling knocking down Absolute Immunity, and in spite of the fact that said new President asked for two additional weeks to submit his brief on the debate over Harriet Miers’ testimony, and in spite of the fact that HJC agreed to that two week delay, the DC Appeals panel has ordered DOJ to submit its brief by February 25, half the time the Obama Administration requested. 

That’s weird for several reasons. Normally, when the legislature and the executive get into a squabble, the courts like to have them try to resolve the squabble on their own. One of the reasons Obama had wanted two weeks was to try to broker a deal himself. Given reports that such a deal is taking some time, the order to submit briefs this Wednesday makes it much less likely that HJC and Bush’s minions will make a deal before the Appeals Court gets involved again.

The one-week extension also guarantees that Obama will submit his brief before Dawn Johnsen takes over at OLC; her confirmation hearing is scheduled for the same day as the new deadline for the brief. One way Obama could have responded to this suit would be to simply withdraw Steven Bradbury’s audacious memo expanding Absolute Immunity, but that won’t happen before Johnsen takes over.

Now, I have no idea why the Appeals Court is so antsy to get involved here, but there are several possibilities.

It’s possible that they’ve seen Greg Craig’s statement explaining that Obama will not "do anything that would undermine or weaken the institution of the presidency" and they worry that Obama will craft a deal that preserves Absolute Immunity, and they want to prevent that from happening (though why they think John Conyers would agree to such a deal, I have no clue).

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Oh, Now They're Trying to Insist on Their Responsibility to Archive

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It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency Read more →

Denied! Bates Refuses to Stay Order in Miers/Bolten Suit

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Judge Bates isn’t helping BushCo sustain their USA purge cover-up and stall. Today, he denied the White House’s motion for a stay of his earlier order pending appeal. He got a bit snarky in his opinion denying the stay–I imagine David Addington is having fits right now.

The Executive has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question “so serious, substantial, difficult and doubtful,” id., as to warrant suspending the effect of the July 31st Order pending appeal. To begin with, the Executive devotes almost the entirety of its briefing on this prong to arguing that the Court’s Order is “susceptible to serious debate” concerning the threshold decisions relating to the Committee’s standing and cause of action. See Defs.’ Mot. at 5-6. But even assuming that the Executive’s proposition were correct — which it is not — its reliance upon that point is misplaced. The D.C. Circuit has explained that the stay pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself, see Philip Morris, 314 F.3d at 617. Here, however, the denial of the Executive’s motion to dismiss is not presently subject to appeal because it is not a final order.

[snip]

The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important — primarily because it involves the relationship of the political branches — does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee. [my emphasis]

Bates goes on at some length, calling out the transparent BS in BushCo’s arguments.

Kagro X and I chatted briefly about what this means–I expect him to do a post on how, absent some enforcement mechanism, this doesn’t exactly guarantee that Miers will show before HJC anytime soon. (Gosh, I’ve never heard him make that argument before.)

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