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Glenn Fine Visits HJC

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Live hearing on CSPAN2 and HJC’s stream.

Linda Sanchez is hammering the ways in which appointing Nora Dannehy will actually ensure that this story gets covered up. 

Jeebus, Chris Cannon is still trying to claim there’s no evidence of White House awareness and involvement–even though the IG complained about non-cooperation with the White House. He’s trying to say that the Dannehy investigation will mean that Rove and Miers should not have to testify. I don’t have the patience for this today.

John Conyers sounds … old.

Glenn Fine up. Most serious allegation: that partisan political considerations did play a part in the removal of several USAs. 

"While USAs can be removed, they cannot be removed for an illegal reason."

Fine: Gaps in the investigation: Miers, Rove, and documents the WH refused to turn over. 

Chris Cannon, hitting on Iglesias for not reporting contact from Congress.

Cannon is on thin ice here–the reason Iglesias was removed was because he was incomptent.

Fine: We didn’t find that that was the reason the Department remove him.

Shorter Fine: No, you’re wrong, Congressman. 

Cannon: Couldn’t it be possible that people within DOJ said he was weak-minded.

Fine: But they didn’t. 

Fine: If it were that you had to remain political support, every prosecutorial decision would be suspect. It was unprecedented in the Department’s history to have this group removed. 

Fine: I don’t think it was the case [that these prosecutors were not being effective]. It’s not the Department’s job simply to accept complaints without investigating them. 

Linda Sanchez: Is it fair to say you couldn’t completely investigate the firing. Those witnesses were Karl Rove, Harriet Miers, and Monica Goodling?

Fine: Among others. 

Sanchez: I’m concerned that Nora Dannehy hasn’t been appointed special prosecutor. How can a prosecutor attack the claims of privilege at the same time that the Department is defending the White House in its privilege claims?

Fine: Not necessarily. You’d have to ask the department.

Sanchez: Under special counsel regulations, should appoint one not in DOJ, when DOJ pursuing the matter would present a conflict of interest.

Fine: A close question. 

Ut oh, Darrel Issa.

Issa notes that Rove would have to answer fully if he were pardoned. Sounds like he’s making a case for giving Rove a pre-emptive pardon.

Issa: If all we’re interested in is seeking the non-partisan truth, then a pardon is not a bad thing.

Issa: You’re saying that Lam was not removed bc of Cunningham and Foggo. And they’ve both been convicted, correct?

Um, kind of. Read more →

Sanchez v. Mukasey on “Executive Privilege”

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I wanted to look closely at the exchange between Congresswoman Sanchez and Attorney General Mukasey to see if it gets us any closer to determining whether DOJ reviewed Bush’s invocation of absolute immunity for Rove–and specifically whether Mukasey bought off on the claim that the matters in question pertained to Rove’s "official duties."

Sanchez: There are a number of different areas of questioning that I have and I’m going to try to get through them as quickly as I can. First off, in response to questioning before the Senate Judiciary Committee on July 9 about the allegations of selection prosecution of Alabama Governor Don Siegelman, you stated and I’m quoting you here, "Various avenues open for exploring those allegations, including having testimony on the subject." Given your assertion about the ability of Congress to investigate the Siegelman matter through testimony, I’m wondering, do you support Karl Rove’s decision to ignore a congressional subpoena on July 10 and refuse to testify about his role in the Siegelman matter and other matters regarding the politicization of the Justice Department?

Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

Sanchez: But prior case law has held that that is the case.

Mukasey: Don’t know that. I know that is a matter under active litigation and is I believe sub judice before a judge in–

Sanchez: So you agree that Karl Rove can disregard a congressional subpoena–

Mukasey: What I’m saying is the question of whether an immediate advisor to the President has to appear at all when a proper claim of has been made of Executive Privilege is a matter that I believe is actively before a District judge and I shouldn’t comment anymore on that and I won’t.

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Why Absolute Immunity Is So Audacious

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Apologies in advance–but I’m going to be harping on Rove’s non-appearance before HJC for a couple more posts today (if you’re bored with that, don’t miss bmaz’ update on FISA).

I still seem to be one of the only people–aside from John Conyers–who gets that Karl Rove did not claim executive privilege yesterday, but instead claimed something much more audacious–absolute immunity from being forced to testify before Congress.

The claim that Mr. Rove and the White House make is that high-level aides to the president are totally immune from compelled congressional testimony. Not that there are certain subjects they cannot discuss in a public hearing, nor that the White House has a right to review questions that are asked, but that they are in a class entirely by themselves — a separate group that is above the reach of a subpoena and, consequently, above the law.

Heck, even law professor Jonathan Turley has been repeating that executive privilege line.

A reader sent a link to an ACS blog post on what the difference is (h/t Tanya; and if anyone wants to liberate the full NLJ article on this and email it to you, I’d be grateful). 

The U.S. Supreme Court explained the nature and limits of executive privilege in the Nixon tapes case during Watergate. It said that executive privilege protects "the confidentiality of Presidential communications." And it made clear that the privilege is not absolute. The court balanced the competing interests at stake, the president’s need for confidentiality against the needs of the criminal justice system in finding the truth. Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests.

This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president’s closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued Read more →

White House Confirms: Rove’s “Official Duties” Included Witchhunts of Democrats

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Surprise surprise. Rove was too chicken to give testimony under oath to show up before HJC today. That’s not surprising. What I find surprising (well, not really) are the thin excuses that Republicans are coming up with to excuse Turdblossom from obeying a subpoena.

First, according to the statement Sanchez put out, Fred Fielding did intervene to give a last minute reprieve to Karl–though still without invoking executive privilege.

First, the claims have not been properly asserted here. The Subcommittee has not received a written statement directly from the President, let alone anyone at the White House on the President’s behalf, asserting Executive Privilege, or claiming that Mr. Rove is immune in this instance from testifying before us. Nor is any member of the White House here today to raise those claims on behalf of the President. The most recent letter from Mr. Rove’s lawyer simply relies on a July 9, 2008 letter to him from the current White House counsel directing that Mr. Rove should disobey the subpoena and refuse to appear at this hearing.

The July 9, 2008 letter from White House Counsel Fred Fielding claims that Mr. Rove “is constitutionally immune from compelled congressional testimony about matters that arose during his or her tenure as a presidential aide and that relate to his or her official duties.”2

I’ll take that as confirmation from Nixon’s former lawyer that Karl Rove’s official duties included intervening in criminal investigations and trials to make sure popular Democrats’ careers were ruined.

Frankly, I think that letter, dated July 9, may have arrived very late on yesterday. Sanchez did not mention it in her spoken statement today, nor did Ranking Subcommittee Member Chris Cannon.

Instead of referring to Fielding’s invocation of absolute immunity (but not, apparently, executive privilege itself), Cannon invoked Rove’s busy summer travel schedule. He asked Sanchez whether she knew that Rove had a long-scheduled overseas trip scheduled for today, and complained that Congress had scheduled the hearing to be convenient to the Subcommittee, not to Rove.

So apparently, it’s going to be absolute immunity and the summer vacation privilege that saves poor cowardly Karl from having to testify, under oath, about things he’s all-too-happy to talk about on TV.

No word, thus far, on how this all jibes with the Attorney General’s assertion yesterday that one avenue to find out about Karl’s involvement in the Siegelman prosecution would be to hold a hearing.

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