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Karl Rove Is Betting He Can Avoid Publicly Disclosing His Role In the Bush Administration's Firing Of Independent-Minded U. S. Attorneys—But He May Be Wrong


Friday, Feb. 6, 2009

Former Bush II White House aide Karl Rove refused, while in office, to testify before the 110th Congress regarding the firing of U.S. Attorneys by the Bush Department of Justice. So did former White House counsel Harriet Miers and former chief of staff Josh Bolten. Miers and Bolten were found in contempt of that Congress, and are now fighting a civil lawsuit that would force them to appear. No doubt, they are hoping the U.S. Court of Appeals for the District of Columbia will declare the case moot since that Congress has expired. Meanwhile, Rove has once again been subpoenaed by the House Judiciary Committee of the 111th Congress.

Because Rove, along with Miers and Bolten, refused to discuss the firings of the federal prosecutors during investigations by the Department of Justice's Office of the Inspector General and its Office of Professional Responsibility, both offices requested the appointment of a Special Counsel to investigate. Bush's Attorney General, Michael Mukasey, had little choice but to make such an appointment as he was heading out the door. He selected Nora Dannehy, the acting U.S. Attorney in Connecticut, to serve as Special Counsel to investigate the firings.

In sum, both the Judiciary Committee and a Special Counsel are actively investigating these firings and everyone wants to talk to Karl Rove, who has publicly declared that he had nothing to do with the firings, or for that matter, the selective prosecution of high-profile Democrats (like former Alabama Governor Don Siegelman). Seasoned investigators, however, do not waste their time fighting their way down dead-end streets, and they want Rove. So there is more going on here than meets the eye, despite Rove's blanket public denials.

Rove's Strategy and the Reason He Is Cooperating with a Special Counsel While Stonewalling Congress

Recently, investigative journalist Murray Waas reported for Talking Points Memo that Rove has quietly agreed to cooperate with Special Counsel Dannehy. If you believe the spin Rove's attorney, Robert Luskin, is placing on this fact, then Rove has always wanted to cooperate in this inquiry. Luskin claims that previously, "it was not his [Karl's] call... it was not up to us decide." According to Luskin, Rove could not cooperate because Bush's White House counsel Fred Fielding instructed him not to do so. That is not likely, but I will come to that point shortly.

Luskin's claim of Rove's willingness to assist is also totally inconsistent with Luskin's current position regarding the subpoena Rove received late last month from the House Judiciary Committee, summoning him to testify. Luskin tossed that matter to Obama's White House counsel, Greg Craig, seeking guidance as to what Rove should do with his subpoena in light of the fact that, before Bush left office, Rove received instructions from White House counsel Fielding to, in effect, ignore the Congress. Obama's counsel has not yet responded, no doubt because the Obama Administration needs to figure out how they want to deal with the matter. For the moment, the House Judiciary Committee has extended Rove's appearance date to February 23, 2009.

Rove's strategy is becoming increasingly apparent: He is cooperating with the Special Counsel's investigation because she has convened a grand jury. Rove and his lawyer know that White House aides are not immune from a grand jury subpoena. After all, Rove lost that same battle during the investigation of Special Counsel Patrick Fitzgerald into the leak of Valerie Plame Wilson's status as a covert CIA agent. Indeed, given Rove's many trips to the Fitzgerald grand jury, it appears that he made it through by the skin of his teeth, unlike Scooter Libby who did not. It seems likely that Rove gave Fitzgerald just enough to avoid being charged, like Libby, with obstructing justice.

On one hand, Rove doubtless understands that it is remarkably easy to obstruct justice when a grand jury is involved, so he is cooperating with the Special Counsel investigators, even before testifying before the grand jury, to minimize his risk. On the other hand, he and his attorney appear ready to stonewall Congress, to openly obstruct any and all Congressional inquiries, because the law is unclear. The Bush Justice Department refused to enforce the statute requiring it to take persons held in contempt of Congress before a grand jury. As a result, Congress was forced to use civil lawsuits to enforce its subpoena powers, instead of the criminal statute that has long been in the federal code.

In addition, as grand jury testimony is secret, Rove must be well-aware that his confessions of what he may have done regarding the firing of U.S. Attorneys will never be known outside the grand jury room – unless he is prosecuted. And given the fact that U.S. Attorneys serve at the pleasure of a president, it will not be easy to base a prosecution upon their removal, even if it was for political reasons. Congressional proceedings are, of course, almost always held in public. So clearly, Rove's strategy is to tell the grand jury what it wants to hear in secret, and to hope that will be the end of the matter.

From Rove's point of view, such a strategy makes sense: His behavior in the firings very likely does not place him in criminal jeopardy, although if the public or Congress were to learn that he played a significant role, they would likely be deeply outraged – not only due to the behavior itself, but because such revelations would expose his prior claim of non-participation as a lie.

Rove Is Gaming Congress, While Betting President Obama Will Look the Other Way

Rove will be able to pull this strategy off if the Obama Justice Department refuses to enforce the Congressional criminal contempt statute, like the Bush and Reagan Administrations before it. This appears to be the bet that Rove and his lawyer have placed, initially at least. If the Justice Department chooses this course, that would force Congress to use civil litigation, and the Bush Administration's White House Counsel Fred Fielding has given Rove the wherewithal to litigate for years on the civil side.

Fielding, whom I know from having brought him into the government as my deputy White House counsel, is a very cautious fellow. He did not cook up his letter and send it to Rove's counsel because he wanted to protect Rove or the powers of the presidency. Instead, what likely happened was this: Rove was about to be held in contempt before the 110th Congress adjourned, just as Miers and Bolten had been. U.S. District Court Judge John Bates had slammed the White House in a ruling rejecting a claim of absolute immunity for senior presidential advisers, (which I addressed in a prior column). In that context, Rove went to President Bush to ask him to intercede.

Fielding may or may not have been called into the session to explain what could or could not be done, but what is clear is that Bush instructed Fielding to give Rove's attorney a letter providing all the protection available, and then some. Accordingly, on January 16, 2009, Fielding told Rove's attorney that Bush was directing Rove not to provide any information to Congress about the firing of U.S. Attorneys, and to claim “absolute immunity” from having to appear before Congress. This is the precise claim that Judge Bates had slammed the Bush White House on. Bates could find no judicial ruling, or other basis, that empowers any president to effectively end the oversight powers of Congress, to remove the checks and balances envisioned by the Founders.

If the Obama Justice Department forces Congress to proceed civilly to enforce its subpoenas, then the House Judiciary Committee will have to find Rove in contempt for claiming absolute immunity; the entire House will have to vote on it; and the committee will have file a lawsuit. In turn, the lawsuit will go from the U.S. District Court for the District of Columbia, to the U.S Circuit Court of Appeals for the District, to the U.S. Supreme Court – where Rove will likely lose, and thus be forced to appear before the committee. However, when Rove appears, he will invoke “executive privilege.” This issue, in turn, will have to be litigated all the way to the Supreme Court – where Rove will likely lose again. When called before the committee after that, he will no doubt take the Firth Amendment, an assertion that will also have to be litigated. In short, this could go on for years.

Who will pay for all this? The House Judiciary Committee and the House will use its appropriated funds – taxpayer money. It is also possible that the Justice Department would be required to pay for the Rove/Bush effort to test the extent of presidential privilege, although it would be outrageous if that were the case. Nixon was forced to pay for all of his own legal expenses after leaving office, and litigating the rights to his tapes and papers. But times have changed, so it is not completely clear whether that precedent might cover Rove too – especially retrospectively, if Rove were found to have lied all along in claiming his lack of involvement in the U.S. Attorney firings, or if his legal claims were deemed specious.

The bottom line, however, is this: Unless the Obama Justice Department says the criminal code sections regarding contempt of Congress will be honored and applied, no one should expect to hear anything publicly from Rove under oath anytime soon, if ever.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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