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Rove Subpoenaed Again

By Dan Froomkin
Special to washingtonpost.com
Friday, May 23, 2008 1:08 PM

The House Judiciary Committee yesterday sent former White House political guru Karl Rove a new subpoena to add to his document collection. It makes a matching pair with the subpoena from the Senate Judiciary Committee that he's been ignoring since last August.

Both relate to investigations of Rove's role in the politicization of the Justice Department and the possibly politically-motivated firing of eight U.S. attorneys.

The House investigation is particularly focused on allegations of selective prosecution of former Alabama Gov. Don Siegelman. And because Rove -- now a celebrated pundit and columnist -- has been so outspoken in denying any involvement with the Siegelman case, House Judiciary Committee Chairman John Conyers argues that Rove's refusal to appear at a public hearing and testify under oath is particularly inappropriate.

But there seems little doubt that Conyers will run into the same wall that has thwarted his Senate colleagues. The day Rove was supposed to testify before the Senate Judiciary Committee, he didn't bother to show up. And the White House made the extraordinary claim that he has absolute immunity from congressional oversight. As I wrote in my Aug. 2 column, Karl Rove's Immunity, the law does not appear to support anywhere near such a broad assertion. Traditionally, courts have recognized that the president's right to confidentiality must be balanced against Congress's legitimate oversight needs. But no matter. The White House asserted it -- and the Senate folded.

Conyers is more of a fighter. When former White House counsel Harriet E. Miers didn't show after a subpoena last summer, and when White House Chief of Staff Joshua B. Bolten refused to turn over subpoenaed documents, Conyers didn't back down. He asked the Justice Department to enforce the subpoenas. And when Bush political appointees at Justice refused, he asked a federal judge to do it. That civil suit is pending.

Meanwhile, the White House shows no sign of letting up on its unprecedented assertions of privilege. White House spokesman Tony Fratto yesterday called the new subpoena an act of "political theater" and said: "They know he can't respond to those questions."

And as I wrote in my May 2 column, What Karl Rove Fears Most, the wily political operative will do just about anything to avoid being forced to answer a direct question -- especially under oath.

The Documents in the Case

Conyers released a series of documents yesterday and issued this statement: "It is unfortunate that Mr. Rove has failed to cooperate with our requests. Although he does not seem the least bit hesitant to discuss these very issues weekly on cable television and in the print news media, Mr. Rove and his attorney have apparently concluded that a public hearing room would not be appropriate. Unfortunately, I have no choice today but to compel his testimony on these very important matters."

In the most recent exchange between Conyers and Rove attorney Robert Luskin, Luskin wrote on Wednesday that "in light of your reported remarks about the need for 'someone' to 'kick his ass'," he was not "the least bit confused about the Committee's motives and intentions. I confess, however, that I do not understand why the Committee is threatening a subpoena to Mr. Rove for information related to the alleged 'politicization of the Department of Justice,' when, as the Committee is surely aware, Mr. Rove has already received a subpoena for the same subject matter from the Senate Judiciary Committee. I do not understand why the Committee insists on provoking a gratuitous confrontation while the issues raised by the Committee's request are being litigated in U.S. District Court or why the Committee refuses to consider a reasonable accommodation. . . .

"While the Committee has the authority to issue a subpoena, it is hard to see what this will accomplish, apart from a Groundhog Day replay of the same issues that are already the subject of litigation."

Luskin also noted: "Your letter of May 14 draws attention to the fact that Mr. Rove has publicly denied any involvement in the prosecution of Gov. Siegelman or that he behaved improperly concerning the firing of U.S. Attorneys. There is no legal doctrine that stands for the proposition that Mr. Rove must stand silent in the face of false accusations or that his general denial of wrongdoing vitiates a privilege held by others."

In his response, Conyers wrote back: "Your letter is incorrect in suggesting that the enclosed subpoena will raise the same issues as the Senate Judiciary Committee's subpoena to Mr. Rove and the pending lawsuit concerning our Committee's subpoena to Harriet Miers. Both these matters focus on the firing of U.S. Attorneys in 2006 and efforts to mislead Congress and the public on that subject. Here, as we have made clear from the outset, the Siegelman case is a principal focus of our request for Mr. Rove to testify. In addition, unlike Harriet Miers, Mr. Rove has made a number of on-the-record comments to the media about the Siegelman case and the U.S. Attorney firings, extending far beyond 'general denials of wrongdoing.' There is no question that both the prior subpoenas to Mr. Rove and Ms. Miers should have been complied with. But it is even more clear that Mr. Rove should testify as we have now directed."

Conyers also attached a subpoena.

And separately, Conyers released a May 5 letter from the Justice Department indicating that its Office of Professional Responsibility has opened an investigation of possible selective prosecution of Siegelman and at least three others.

The Coverage

Carrie Johnson writes in The Washington Post: "The House Judiciary Committee subpoenaed former presidential adviser Karl Rove yesterday to testify about his alleged meddling in Justice Department operations, escalating a long fight over lawmakers' authority to question Bush administration aides.

"Committee Chairman John Conyers Jr. (D-Mich.) wants to ask Rove about alleged politicization of the Justice Department, including the firings of U.S. attorneys and any role Rove may have played in the prosecution of former Alabama governor Don Siegelman. Siegelman, a Democrat, was convicted on fraud charges but was released from prison in March pending the results of his appeal. . . .

"'The decision about when, where and what a former assistant to the President may testify about raise issues of Executive Privilege and separation of powers that Mr. Rove does not control,' Luskin wrote in a letter dated May 21 that was released yesterday."

Neil A. Lewis writes in the New York Times: "Although Mr. Rove has left the White House and is now a political commentator, Mr. Luskin said that Mr. Rove 'in these matters is not a free agent' and must comply with instructions from the White House not to testify.

"Mr. Conyers has argued that Mr. Rove may not himself invoke any privilege on behalf of the White House but that President Bush could do so. . . .

"If he does not appear, as expected, House Democrats will have to consider issuing a contempt citation as they did for Ms. Miers."

The New York Times editorial board blogs: "The question of whether Mr. Rove needs to testify is not a close one. The House Judiciary Committee has the right to hear from him, in person and under oath. If he believes that any of the committee's questions violate legal privileges, including executive privilege, he still needs to show up -- and invoke the privilege in person."

Elana Schor blogs for the Guardian: "Remember when a congressional subpoena meant something? Ah, the good old days, before George Bush extended his executive privilege like an alien spaceship over every registered Republican voter in the country.

"'Testify before Congress?!' he cried. 'No one who ever sympathised with me may prostrate themselves before the Democrat party! Fools!'

"Just kidding -- that dialogue would be far more Cheney-appropriate. As it is, today's news . . . is intensely anti-climactic. No one in Washington expects Rove to show up, and it's a matter of time before Rove asserts executive privilege again. 'Tis sad but true."

MSNBC host Keith Olbermann had George Washington University law professor Jonathan Turley on his show last night.

Olbermann: "Joe Wilson's dream of watching Karl Rove frog marched out of the White House in handcuffs is gone, but a new dream has been born tonight. What about a turd-blossom perp walk out the front door of Fixed News down the street?"

Turley told Olbermann that "the president has once again forced a constitutional crisis. He's basically telling Congress that even if I did politicize the Justice Department, even if there's crimes here, I can tell people not to give you evidence. And we have now this . . . long list of people that are refusing to testify upon orders of the president.

"Congress has to do something about that. If it's not going to become a virtual governmental unit, it has to do something when people look at the Congress straight in the eye and say, I just don't give a darn whether you're subpoenaing me or not. I'm not going to show up. So it's a direct challenge to the Legislative Branch."

A New Yoo Memo

Robert Barnes writes in The Washington Post that when Bush administration officials wanted to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks, they had a problem: "A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the 'exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.'

"But the administration did not want to follow FISA, because the law requires court approval. . . .

"This created a quandary that then-Justice Department lawyer John C. Yoo resolved in [an Office of Legal Counsel] memo."

The memo remains classified, but Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) managed to get one sentence declassified. According to Yoo: "Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Whitehouse was not impressed: "I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," he said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

Blogger emptywheel (Marcy Wheeler) wrote about this on Wednesday, noting that after the sentence was declassified, Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs, sent a letter to Whitehouse and Feinstein, "trying to claim that Yoo's opinion is unremarkable."

From the Benczkowski letter: "The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President's constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties."

Torture Watch

Matthew Lee writes for the Associated Press: "Secretary of State Condoleezza Rice on Thursday defended tough interrogation techniques for terrorism suspects approved by the Bush administration in the wake of 9/11, saying they were necessary to protect America from new attacks.

"In her most extensive public comments about how the administration dealt with detainee interrogations in the aftermath of Sept. 11, 2001, and the anthrax attacks that followed, Rice insisted the methods of questioning complied with both U.S. law and treaty obligations.

"But she acknowledged that those rules had since changed and that the United States was a 'different place' then, adding that the administration's top priority at the time had been preventing new attacks and not necessarily observing fine legal points. . . .

"Rice refused to specify what specific techniques might have been discussed or approved, but said America was safer because of interrogation conducted on al-Qaida detainees captured in the first months and year after the 9/11 attacks. . . .

"[S]he maintained that Bush's top aides had been scrupulous in making sure the early interrogations conformed to existing rules.

"'I don't want anyone to believe that even when we were in that different place that we failed to ask the question: "Are we living up to our laws and to our treaty obligations?" We asked the questions even then, but it is a different America now than what has been and gone.'"

Phillip Carter blogs for washingtonpost.com: "Rightly or wrongly, Lt. Gen. Ricardo Sanchez will forever be connected to the Abu Ghraib abuse scandal.

"How does he explain what happened while he was in command? In his autobiography, Sanchez seems to buy in to the 'torture narrative' whereby detention and interrogation policies hatched in the White House, Justice Department and Pentagon are believed to have led to the abuses at Abu Ghraib."

Carter quotes from Sanchez's book:

"During the last few months of 2002, while the higher levels of the U.S. government were sparring with Saddam Hussein and setting up its case for an invasion of Iraq, there is irrefutable evidence that America was torturing and killing prisoners in Afghanistan. . . .

"Because of the U.S. military orders and presidential guidance in January and February 2002, respectively, there were no longer any constraints regarding techniques used to induce intelligence out of prisoners, nor was there any supervisory oversight. In essence, guidelines stipulated by the Geneva Conventions had been set aside in Afghanistan -- and the broader war on terror. The Bush administration did not clearly understand the profound implications of its policy on the U.S. armed forces. In essence, the administration had eliminated the entire doctrinal, training, and procedural foundations that existed for the conduct of interrogations. It was now left to individual interrogators to make the crucial decisions of what techniques could be utilized. . . .

"In retrospect, the Bush administration's new policy triggered a sequence of events that led to the use of harsh interrogation tactics not only against al-Qaeda prisoners, but also eventually prisoners in Iraq -- despite our best efforts to restrain such unlawful conduct.

"In concert with this colossal mistake, the administration also created an environment of fear and retribution that made top military leaders hesitant to stand up to the administration's authoritarianism. The result was total confusion within the ranks in the execution of interrogations."

Farm Bill Watch

Jonathan Weisman writes in The Washington Post: "With an overwhelming 82 to 13 vote, the Senate yesterday completed the override of President Bush's veto of a comprehensive farm bill, shrugging off Republican concerns about an embarrassing legislative glitch to make the $307 billion bill the law of the land.

"House GOP leaders continued to grumble that Democrats had violated the Constitution by pressing forward with the veto override after they discovered that a whole section of the bill on trade policy had been inadvertently dropped from the version vetoed Wednesday.

"But Democratic leaders said they had court precedent and constitutional scholars on their side. 'The veto override will have the force of law,' said House Speaker Nancy Pelosi (D-Calif.) . . .

"Senate Minority Leader Mitch McConnell (Ky.) and Senate Republican Conference Chairman Lamar Alexander (Tenn.) were among the 35 Republicans who joined in the most significant legislative rebuff of Bush's presidency.

"'By overturning the president's veto, we are making substantial investments in nutrition programs to help millions of families afford healthy food, in help for farmers hit by disaster and to protect our nation's natural resources,' said Senate Majority Leader Harry Reid (D-Nev.)."

Several readers e-mailed to complain that in yesterday's column I gave Bush too much credit for his veto by focusing on the bill's crop subsidies and not its desperately needed anti-hunger provisions. So for the record, as Alan Bjerga writes for Bloomberg: "Assistance to poor families takes up about 74 percent of the spending authorized under the measure, according to House Agriculture Committee Chairman Collin Peterson. Crop subsidies account for about 16 percent, he said."

Appropriations Watch

Jonathan Weisman writes in The Washington Post: "The Senate yesterday approved $165 billion to fund the wars in Iraq and Afghanistan well into the next presidency, but in a break with President Bush and the presumptive Republican presidential nominee, Sen. John McCain, it also approved billions of dollars in domestic spending that includes a generous expansion of veterans' education benefits. . . .

"Senators stripped the package of all language that mandated troop withdrawals and sought to govern the conduct of the Iraq war, which had been in a previous version approved by the House.

"But the separate domestic spending package served notice to the White House that in an election year, lawmakers from both parties will demand coupling Iraq war funds with priorities at home. . . .

"The 75 to 22 vote on the domestic measure surprised even its advocates and showed clearly the impact of the looming November election on Republican unity. Senate Republicans who face reelection abandoned Bush first, followed by other Republicans."

Robert Pear writes in the New York Times: "The size of the vote surprised Republican leaders, provided fresh evidence of the president's lame-duck status and suggested that election-year politics had fractured Republican unity."

Influence Watch

Manu Raju of The Hill notes the Republican defections on two major bills yesterday and writes: "When asked what the votes said about Bush's influence on Capitol Hill, Majority Leader Harry Reid (D-Nev.) responded slyly: 'What influence?'"

John D. McKinnon writes in the Wall Street Journal (subscription required): "With his popularity near all-time lows, President Bush is playing a diminished role so far in the 2008 campaigns. . . .

"Mr. Bush plans three fund-raising events for Sen. McCain next week. Even there, though, it is unlikely Mr. Bush will be seen much with the candidate."

Latrine Watch

Dan Eggen writes in The Washington Post: "President Bush toured a spic-and-span latrine Thursday that appeared vastly improved from a month ago, when an Internet video showed raw sewage and peeling paint in barracks used to house U.S. troops returning from Afghanistan.

"U.S. Army officials said $3 million has been spent since then on improvements to the Korean War-era barracks, which will eventually be replaced as part of a massive military infrastructure plan. . . .

"Bush's visit to the barracks was added to a previously scheduled memorial ceremony at Fort Bragg for returning troops from the 82nd Airborne Division, most of whom had served extended tours in Iraq and Afghanistan over the last two years.

"With 17,000 paratroopers assembled in formation, Bush gave a speech praising their efforts and declaring that the United States was 'on our way to victory' in Iraq."

Petraeus Watch

Thomas E. Ricks and Karen DeYoung write in The Washington Post: "Army Gen. David H. Petraeus, the top U.S. commander in Iraq, said he expects to recommend additional cuts in U.S. troop levels there this fall. Petraeus said he would assess conditions before his departure in September, when he is scheduled to take over the U.S. Central Command.

"'My sense is I will be able to make a recommendation at that time for further reductions,' Petraeus said at a Senate Armed Services Committee hearing yesterday on his nomination to the post that would put him in charge of U.S. military operations from the Horn of Africa to Central Asia. . . .

"Petraeus also said the Pentagon will not reach its stated objective of turning over security responsibility for all 18 provinces to the Iraqi government by the end of this year. When Bush announced a new strategy and a 'surge' in U.S. forces in Iraq in January 2007, he said the turnover would be completed by the end of that year. So far, nine provinces are under Iraqi control."

Abortion Watch

Stephanie Simon writes in the Wall Street Journal (subscription required): "With time running out on the Bush administration, conservative activists are renewing a drive for regulations that would deny federal subsidies to clinics that provide abortions or counsel women about the option.

"In a final push, the activists are preparing a public campaign to pressure President Bush to use his executive authority to order the change. They say they soon will present the White House with a petition signed by tens of thousands of voters and a letter endorsed by at least 70 conservative organizations, including the Family Research Council, the Eagle Forum and Concerned Women for America. . . .

"The federal government distributes about $280 million a year among thousands of clinics to subsidize the cost of birth control, cancer screening, HIV testing and other reproductive care for low-income patients. Known as Title X, the program serves five million men and women a year. By law, the money can't be used for abortion procedures.

"But about one-third of Title X patients receive their care at reproductive-health clinics run by Planned Parenthood, which is also the nation's largest abortion provider. Critics say the federal grants indirectly subsidize Planned Parenthood's abortion services by keeping a steady stream of money flowing into the clinics."

Who's Appeasing Whom?

The New York Times editorial board writes: "Everybody knew President Bush was aiming at Senator Barack Obama last week when he likened those who endorse talks with 'terrorists and radicals' to appeasers of the Nazis. But now we know what Mr. Bush knew then -- that Israel is in indirect peace talks with Syria, a prominent member of Mr. Bush's list of shunned nations -- and it seems as if the president was going for a two-for-one in his crack about appeasement.

"If so, it was breathtakingly cynical to compare the leadership of the Jewish state with those who stood aside in the face of the Nazi onslaught, and irresponsible to try to restrain this American ally from pursuing a settlement that it judges as possibly being in its best interests. . . .

"Like Mr. Obama (and many others), we strongly encourage diplomacy, including contacts with adversaries. If Mr. Bush cannot use his remaining months in office to do the same, he can at least get out of the way."

Froomkin Watch

I'll be off all next week. The column will resume on June 2.

Cartoon Watch

Pat Oliphant on Bush's groveling; Nick Anderson on Bush's real enemy; Roy Peterson on Bush's encouraging words; Larry Wright on Bush's gas torture; Paul Conrad and Jack Ohman on Bush's sacrifice.

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