Karl Rove's Immunity

By Dan Froomkin
Special to washingtonpost.com
Thursday, August 2, 2007; 1:24 PM

The presidential aide who acts with such impunity now has the ultimate protection: absolute immunity from congressional oversight, at least in the judgment of White House Counsel Fred Fielding.

White House political mastermind Karl Rove had been subpoenaed to testify this morning before the Senate Judiciary Committee as part of the investigation into last year's still-unexplained firings of nine U.S. attorneys.

No one actually expected Rove to show up. But Fielding's assertion of executive privilege yesterday to block his testimony was nevertheless surprising in its breadth.

From Fielding's letter to Judiciary Committee Chairman Patrick Leahy: "Based upon the advice of the Department of Justice, the President . . . has requested that I advise and inform you that Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity. Accordingly, Mr. Rove is not required to appear in response to the Judiciary Committee subpoena to testify about such matters, and he has been directed not to appear."

In support of his position, Fielding attached a letter from principal deputy attorney general Steven G. Bradbury, who bases his argument for Rove's immunity on a Nixon-era memo by then-assistant attorney general William H. Rehnquist. Rehnquist wrote in 1971: "The President and his immediate advisers -- that is, those who customarily meet with the President on a regular or frequent basis -- should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee."

The Clinton Justice Department cited the same Rehnquist memo in 1999 when then-White House counsel Beth Nolan was subpoenaed by a House committee investigating President Clinton's grant of clemency to 16 members of a Puerto Rican terrorist group.

But as Nolan herself testified on the Hill this spring: "Recognizing the absence of judicial precedent for this position, however, the Attorney General appropriately also considered the balance of executive and legislative interests in the particular matter to conclude that my testimony was protected from congressional compulsion under the particular circumstances of that request. I subsequently testified before that same committee with respect to other pardons, after the President waived any privileges he might have asserted with respect to such testimony, just as he had done on prior occasions."

Nolan explained: "We have little case law illuminating the contours of executive privilege, but what we do have makes one thing absolutely clear: the President's constitutional authority to assert executive privilege is not absolute, but is instead to be balanced against the legitimate needs of the coordinate branches of government in undertaking their constitutionally assigned responsibilities. The seminal Supreme Court case on executive privilege is, of course, United States v. Nixon, [a 1974 decision] in which the Court held that a privilege is a qualified one that may be outweighed by countervailing needs."

Leahy responded to Fielding's letter with the following statement: "Why is the White House working so hard to hide Karl Rove's involvement? Karl Rove, who is now refusing to comply with Senate subpoenas, spoke publicly in speeches about these firings when the scandal first broke, but is suddenly unable to talk it about when he is under oath? Mr. Rove has given reasons for the firings that have now been shown to be inaccurate after-the-fact fabrications. Yet, he now refuses to tell this Committee the truth about his role in targeting well-respected U.S. Attorneys for firing and in seeking to cover up his role and that of his staff in the scandal.

"It is a shame that this White House continues to act as if it is above the law. That is wrong. The subpoenas authorized by this Committee in connection with its investigation into the mass firings of U.S. Attorneys and the corrosion of federal law enforcement by White House political influence deserve respect and compliance."

Here is some coverage from Michael Abramowitz and Dan Eggen of The Washington Post and Greg Gordon of McClatchy Newspapers.

Gonzales Keeps Parsing

James Risen writes in the New York Times: "Attorney General Alberto R. Gonzales offered a narrowly drawn defense of his recent Congressional testimony on Wednesday, saying he had been truthful in denying that there had been serious disagreements within the Bush administration about the National Security Agency's program of wiretapping without warrants."

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