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

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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. 

[snip]

"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." Read more →

Rove’s Rather Uncooperative Cooperation

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Remember how Bob Luskin told Murray Waas that Rove had gotten all cooperative?

Well, it will surprise none of you that that’s a load of horse puckey. In a letter to Luskin, John Conyers reveals that Rove is stalling on the February 23 deposition he agreed to in two ways: by insisting on bracketing off the Don Siegelman testimony, and by begging for (yet) another delay.

Though staff, I understand that you have offered to have your client testify voluntarily, but only on the Siegelman matter, and that in any event you have requested a further delay in the deposition. I cannot agree to either of these requests for a number of reasons.

With regard to the request to unilaterally limit Mr. Rove’s testimony to the Siegelman matter, as we have previously discussed, I do not believe it is acceptable for the Committee to allow witnesses to unilaterally determine what they can and cannot testify concerning, again absent assertion of a valid privilege. Moreover, the proposed distinction between the Siegelman matter and the U.S. Attorney investigation generally does not appear to be a tenable or viable distinction. They are part and parcel of the same serious concerns about politicization of the U.S. Attorney corps and the Justice Department under the Bush Administration.

[snip]

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.

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. Read more →

Domenici Gets a Subpoena

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I’m guessing he’ll cite the William Jefferson and Tom Feeney precedent and ignore this and then Dannehy will hit a wall. But for the moment, at least, Pete’s been served (h/t scribe):

A federal grand jury has subpoenaed records of former Republican Senator Pete Domenici of New Mexico.

[snip]

The grand jury subpoena for some of Domenici’s records has been confirmed by two private attorneys who spoke on condition of anonymity because they were not representing the former senator.

Domenici’s attorney, K. Lee Blalack, has declined to comment.

So long as Domenici can shield stuff through speech and debate, he can probably protect Bush without too much personal downside.

They’re Close to Domenici … Are They Close to Bush?

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Murray delivers the news he promised the other day, revealing that the grand jury investigating the US Attorney firings is getting closer to Pete Domenici.

A federal grand jury probe of the firings of nine U.S. attorneys during the Bush administration is focusing on the role played by recently retired Sen. Pete Domenici (R-NM) and former senior Bush White House aides in the 2006 dismissal of David Iglesias as U.S. attorney for New Mexico, according to legal sources familiar with the inquiry.

The federal grand jury is investigating whether Domenici and other political figures attempted to improperly press Iglesias to bring a criminal prosecution against New Mexico Democrats just prior to the 2006 congressional midterm elections, according to legal sources close to the investigation and private attorneys representing officials who prosecutors want to question.  Investigators appear to be scrutinizing Iglesias’ firing in the context of whether he was fired in retaliation because Domenici and others believed that he would not manipulate the timing of prosecutions to help Republicans.

Apparently, Murray’s inquiries to both Domenici and his aide involved in Iglesias’ firing did not reveal whether or not Domenici will now cooperate with the investigation (he refused to cooperate with DOJ’s own investigation). 

Blalack, a partner with the law firm of O’Melveny and Myers, who is representing Domenici in his dealings with the Justice Department, declined to discuss anything related to the matter, including whether his client will cooperate with prosecutors conducting the current federal grand jury probe.

[snip]

Michael Madigan, an attorney representing [Domenici Chief of Staff Steve] Bell, did not respond to several telephone and email requests for a comment for this story.

[snip]

Although Domenici has refused to be interviewed by the Justice Department, and also declined to comment for this story, he said in a statement in March 2007 that "in retrospect I regret making that call and apologize" and that he had "never pressured [Iglesias] or threatened him in any way."

It’ll be interesting to see whether Domenici cooperates. That’s because–according to an often-ignored story from the Albuquerque Journal–Domenici had to call Bush directly to get Iglesias fired.

In the spring of 2006, Domenici told Gonzales he wanted Iglesias out.

Gonzales refused. He told Domenici he would fire Iglesias only on orders from the president. Read more →

Margaret Chiara’s Falsely-Accused “Lover” Re-Hired

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I’m really happy to see that DOJ has re-hired Leslie Hagen, the woman who was falsely tied to Margaret Chiara in the US Attorney firing scandal. But I’m a little curious about the timing.

On Monday, the Justice Department undid a small part of the damage that top officials caused in a scandal of politicized hiring and firing during the Bush administration. The department rehired an attorney who was improperly removed from her job because she was rumored to be a lesbian.

NPR first broke the story of Leslie Hagen’s dismissal last April, and the Justice Department’s inspector general later corroborated the report. Now, Hagen has returned to her post at the department’s Executive Office for U.S. Attorneys.

In 2006, Hagen was the liaison between the main Justice Department and the U.S. Attorneys’ committee on Native American affairs.

[snip]

Last year, the Justice Department posted Hagen’s old job again. The department conducted a national search. Applications came in from around the country. After several rounds of interviews, Hagen eventually won the job.

The paperwork makes it official as of Monday, Feb. 2. Hagen now has her old position back, but this time it’s a little different. Her contract no longer comes up for renewal every year. Now, the job is permanent.

This appears to be effectively a re-hired based on a national search, and not the Mukasey (or Filip, as Acting AG) undoing some of the damage that the Gonzales DOJ did.

And speaking of Gonzales, there’s one more part of this that will make you spit: as NPR points out, Hagen has had to pay her own legal fees throughout this process.

Nobody official from the department ever apologized to her for what happened. She still owes thousands of dollars in attorney fees, and the Justice Department has refused to pay those bills.

Meanwhile, you and I are paying Gonzales’ legal fees, so he can defend himself against charges that he politicized hiring by–among other things–okaying Hagen’s firing because she was alleged to be a lesbian.

The Justice Department has agreed to pay for a private lawyer to defend former Attorney General Alberto Gonzales against allegations that he encouraged officials to inject partisan politics into the department’s hiring and firing practices.

Lawyers from the Justice Department’s civil division often represent department employees who’re sued in connection with their official actions. Read more →

Grand Jury Getting Closer to Rove

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From Murray, over at TPM:

Karl Rove will cooperate with a federal criminal inquiry underway into the firings of nine U.S. attorneys and has already spoken to investigators in a separate, internal DOJ investigation into the prosecution of former Alabama Gov. Don Siegelman, his attorney said in an interview.

Rove previously refused to cooperate with an earlier Justice Department inquiry into the firings. The Justice Department’s Inspector General and its Office of Professional Responsibility (OPR) said in a report released last September detailing their earlier probe of the firings of the U.S. attorneys that their investigation was severely "hindered" by the refusal by Rove and other senior Bush administration officials to cooperate with the probe.

Rove’s attorney, Robert Luskin, said that Rove, however, will cooperate with a federal criminal probe of the firings being led by Nora Dannehy, the Acting U.S. Attorney for Connecticut who was selected by former Attorney General Michael Mukasey to lead the investigation. Dannehy has recently empaneled a federal grand jury to hear evidence in the matter.

Luskin told me that Rove had earlier not cooperated with the Inspector General and OPR probe into the firings because "it was not his [Karl’s] call… it was not up to us decide." Luskin said that Rove was directed by the Bush White House counsel’s office not to cooperate with the Inspector General and OPR.

Regarding the more recent probe by Dannehy, Luskin said: "I can say that he would cooperate with the Dannehy investigation if asked."

In recent days, according to legal sources, two former Bush White House officials, including one former aide to Rove, have been contacted by investigators working for Dannehy and asked for interviews. One of the two has agreed to be interviewed.

Note, at least according to this, Rove has not yet been asked to talk to the grand jury–two former White House staffers have. If I had to guess, I’d say Sara Taylor (who was a Rove aide) and Chris Oprison or William Kelley (who both worked in the White House Counsel office) are good candidates for the two officials who have already been contacted by Dannehy’s investigation (Scott Jennings is another Rove aide who testified). Taylor, of course, previously shielded much of her testimony before the Senate by invoking executive privilege (which was when Bush panicked and made sure Harriet wouldn’t undergo the same process). 

Rove Deadline Delayed

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John Conyers has delayed Rove’s deadline to give a deposition by three weeks–from February 2 to February 23.

But before he left office, Bush, acting through former White House Counsel Fred Fielding, decided not to respond to any congressional subpoenas. Bush, citing executive privilege, asserted an “absolute immunity” claim in responding to such subpoenas, meaning senior Bush aides were directed not to even appear when subpoenaed.

Obama and his legal advisors have rejected that view as an overbroad reading of the president’s authority, but they have yet to fully formulate their own response to the question.

Conyers had demanded that Rove comply with the subpoena by next Tuesday, Feb. 2, but the deadline has been extended to Feb. 23, according to sources close to the issue.

I realize at least one of you was planning your birthday around Rove’s testimony (though it’s not yet clear whether it’ll be public or not), but I think this is a good thing.

I expect Obama to reject at least some parts of what Rove is trying to do here–certainly the idea that former senior aides have absolute immunity from showing up before Congress if not the notion of absolute immunity in general (to say nothing of former aides of former Presidents). Pushing the deadline out gives Obama several additional ways to respond here. They can respond through their filing on the suit, which is due on February 18. And, presumably before this deadline, Dawn Johnsen will also be installed at OLC with the option to pull Steven Bradbury’s opinion authorizing "absolute immunity" for former aides, which (after all) literally contradicts the logic Rehnquist used to justify absolute immunity in the first place.

Bush’s legal team keeps pretending there will be some point at which Obama is forced to negotiate with the Bush Administration on this. And that’s probably true for Miers’ testimony. But given the sketchiness surrounding Bush’s claim to privilege for Rove, that may not be true at all for Turdblossom.

Mikey Isikoff's Old Lovers Cite New Privileges

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I guess Mikey Isikoff is on a roll with his old lovers. First Dick Cheney and Isikoff’s super secret legal source–Dick Cheney’s lawyer. And now Rove and Isikoff’s super secret "White House source," Rove’s lawyer.  (h/t lllphd)

But then why should Isikoff feel any shame at carrying water for his old lovers?

In any case, Isikoff is doing just that, as for the first time, Fred Fielding (without any specific review from DOJ) is declaring Executive Privilege for Rove’s testimony. You’d think a hotshot reporter like Isikoff would note that this is a new stance from Fielding’s previous stance–which extended exclusively to "absolute immunity." But then, you wouldn’t be talking about Mikey Isikoff, then, would you?

To be fair, the bulk of Fielding’s letter still focuses on absolute immunity (otherwise known as "blow off Congress for free"). But when Isikoff claims in his "reporting" that,

A nearly identical letter (.pdf) was also sent by Fielding the day before to a lawyer for former White House counsel Harriet Miers, instructing her not to appear for a scheduled deposition with the House Judiciary Committee.

He of course is spinning in precisely the manner that Luskin and Fielding would like him to spin. (Mwahhh!!!)

The difference between the two letters is this paragraph, which appears in Miers’ letter, but not Rove’s:

In letters dated June 28, 2007 and July 9, 2007, I notified you of the President’s direction that Ms. Miers was not to provide documents in this matter and not to provide testimony to the Committee.

That is, whereas Fielding cites his earlier letters to Miers–in both of which he explicitly invokes Executive Privilege, with the support of a Paul Clement letter (which seems to ignore the Constitution, but nevermind)–he does not cite his earlier letter to Rove, which makes no mention of executive privilege (and which certainly doesn’t include a review of whether or not Rove’s role in both firing the US Attorneys and pursuing a witch hunt of Governor Siegelman constituted privileged advice). Indeed, had Isikoff referred to that earlier letter he might have noticed ("might") that this letter is "almost identical" to this one–except in this one he has added the language of Executive Privilege.

Which is, of course, a notable addition, coming as it does without any review by DOJ.

But which is, of course, consistent with Luskin’s attempt to pretend that his client has had the same kind of privilege invoked as has Harriet Miers. Read more →

Matt Cooper Predicts Bad Things for His Buddy Karl Rove

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Image by Twolf

Image by Twolf

It was bound to happen. Matt Cooper, to whom Karl Rove leaked Valerie Wilson’s identity, is now reporting on Karl Rove again (at his new digs over at TPM). Better yet, Matt suggests Turdblossom may have miscalculated in his efforts to avoid testifying before the House Judiciary Committee.

I spoke with a Washington lawyer who has dealt with many presidential privilege issues and he (or is it she?) raised some interesting questions and offered a prediction.

The first interesting point the person raised is that Rove’s attorney, Robert Luskin, may have made a tactical mistake in writing to White House Counsel Greg Craig for an opinion. "Be careful what you ask for," the source said. After all, Craig could come up with a rationale for Rove testifying. And why rush to Craig at all when you might prevail in the courts? True, the courts have been loathe to offer hard and fast rules in these cases but it would seem worth pursuing such a legal avenue before going to the Democratic White House for solace. My source predicted that in the end there probably will be some kind of accomodation with Rove answering questions on some topics and not on others rather than a showdown that drags on endlessly. Interestingly, the source thought Obama’s executive order on presidential records differed enough from the question of testimony that it probably would not be determinative in the end. [my emphasis]

See? I’m not crazy!! There’s a difference between Executive Prvilege and Absolute Immunity (otherwise known as the claim that you can just blow off Congress). And Rove may not be playing this one correctly, not least because Greg Craig has a great deal of leeway in how he responds to Rove.

Jeebus, I hope Matt’s source is right that Luskin screwed up tactically. Because, thus far, Luskin has been really lucky (and, I have to begrudgingly admit, good) with his defense of Rove.

At some point the luck has to start turning against Turdblossom, doesn’t it?

Rove: It's Still the Absolute Immunity Issue

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Sorry I’ve been a bit distracted (yes yes, I know I promised a post on those missing OLC opinions!!) But until I get undistracted, check out this video from Turdblossom.

Note how he describes the issue:

I’ve been directed again … not to respond to a subpoena, exerting privilege on behalf of a former President. 

[snip]

This issue of whether or not I should show up … 

He is still describing the issue as being whether or not he has to show up–and he’s avoiding the word "executive."

Fine. Good. That makes Roves’s position much more precarious than if he had a fresh new executive privilege claim. Dawn Johnsen, by herself, could cause Rove’s sorry Turdblossom to have to show up.

We shall see what the Obama Administration does.

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