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Rove to Talk to Congress, But Not Testify Under Oath

The White House has offered a compromise in the ongoing U.S. Attorney firing brouhaha, agreeing to let Congress interview Karl Rove and Harriet Miers without any formal testimony.

The White House move was announced after the Senate voted overwhelmingly to end the Bush administration’s ability to unilaterally fill U.S. attorney vacancies. That had come as a backlash to Attorney General Alberto Gonzales’ firing of the prosecutors.

Gonzales got a morale boost with an early-morning call from President Bush, their first conversation since a week ago, when the president said he was unhappy with how the Justice Department handled the firings.

The White House offered to arrange interviews with Rove, Miers, deputy White House counsel William Kelley and J. Scott Jennings, a deputy to White House political director Sara Taylor, who works for Rove. “Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas,” [White House counsel Fred] Fielding said in a letter to the chairman of the House and Senate judiciary committees.

There is a long tradition, literally going back to George Washington’s time, that presidential advisers are not subject to the whims of Congress. That likely won’t help stem the firestorm over this controversy, however.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Archives December 2006 August 2006 June 2006 May 2006 April 2006 March 2006 February 2006 [IMG Outside The Beltway | OTB] Rove to Talk to Congress, But Not Testify Under Oath DHS New HQ in Lunatic Aasylum Obama Didn’t Return Donor Calls, May Have Lost Millions Thompson Running for President Mary Angela Jaquith, RIP Congress Job Approval Back Down to Pre-Election Levels

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  2. Ugh says:

    TPM says the Prez will speak on the matter at 5:45pm. Can’t imagine it will be to announce Gonzo’s resignation after the 7:15am phone call of support for him – but who knows.

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  3. Anderson says:

    If they can’t get Rove under oath, it’s a waste of time — let him present his spin directly to the media.

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  4. legion says:

    Anderson-right on. I’m pretty sure Leahy has the votes to drop subpoenas. Anything less than public testimony, under oath, is a complete waste of everyone’s time.

    NOBODY in the Bush administration gets the benefit of the doubt. Nobody. Least of all Rove.

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  5. James Joyner says:

    Anderson and Legion,

    While I take your point, the fact of the matter is that the White House would ignore the subpoenas and the courts would back them on it.

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  6. See a tongue-in-cheek visual of Alberto & Karl starring in the new White House presentation of “Justice Is Served”…here:

    http://www.thoughttheater.com

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  7. Anderson says:

    While I take your point, the fact of the matter is that the White House would ignore the subpoenas and the courts would back them on it.

    Not being up on the relevant law, I’m not sure about the latter point, but it seems worth a shot. “Executive privilege” is not the most clearly settled body of law in the world.

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  8. Billy says:

    While I take your point, the fact of the matter is that the White House would ignore the subpoenas and the courts would back them on it.

    Politically, this plays exactly into the hands of the Dems. Best thing Bush could do at this point is dump Gonzales; every second he stays on arms his opponents.

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  9. Anjin-San says:

    People with nothing to hide would not be afraid to testify under oath…

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  10. James Joyner says:

    People with nothing to hide would not be afraid to testify under oath…

    We have this little thing called Separation of Powers. Congress simply doesn’t have the right to subpoena presidential advisers. Further, it’s none of Congress’ business what private advice Karl Rove or Harriet Miers gives to the president.

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  11. Triumph says:

    The White House has offered a compromise in the ongoing U.S. Attorney firing brouhaha, agreeing to let Congress interview Karl Rove and Harriet Miers without any formal testimony.

    When will the Dems understand that NOTHING ILLEGAL HAPPENED.

    These US Attorneys are POLITICAL appointees. The voters chose Bush. If Bush wants to use the legal system to hurt his political opponents and help his friends, he has that right. Feminist prosecutors like Carol Lam should be punished for hurting Republican candidates. Iglesias should be punished for not helping Republican candidates with a well-timed indictment.

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  12. Cybersophist says:

    Drip drip drip….

    The longer that this drags on, the worse it becomes for Bush.

    The press vigils outside the White House waiting for Rove, the press in front of his house each and every morning.

    When the next AG is named, unless this is resolved, imagine how poisonous THOSE hearings will be.

    Drip, drip, drip…

    The GOP fractures representative by representative in a self-preservation mode.

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  13. Anderson says:

    Also, JJ, the White House does *not* want to risk creating an unfavorable precedent on executive privilege, and this might not be the ideal case to take to the courts on the subject.

    The President’s conversations with Rove are one thing; Rove’s chats with DOJ officials, on avowedly political-ax-grinding topics, might be another.

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  14. Jim Henley says:

    God this is fun.

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  15. legion says:

    James,
    I know the WH has claimed Exec Priv to keep people from testifying in the past, but would that apply to a potential perjury investigation?

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  16. James Joyner says:

    I know the WH has claimed Exec Priv to keep people from testifying in the past, but would that apply to a potential perjury investigation?

    No. It’s pretty clear that Congress has subpoena rights in the context of a criminal investigation, to include impeachment proceedings, over any executive official perhaps short of the President and Vice President.

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  17. legion says:

    Well, I guess we’ll find out…

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  18. Andy says:

    Why aren’t we hearing about all of the Whitehouse officials who won’t be subpoenaed?

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  19. Ugh says:

    the White House does *not* want to risk creating an unfavorable precedent on executive privilege,

    Similarly, though, the Congress likely doesn’t want to risk creating a precedent adverse to them – which is why these things tend to get worked out. Though it’s looking doubtful this time.

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  20. Triumph says:

    Why aren’t we hearing about all of the Whitehouse officials who won’t be subpoenaed?

    The best thing we can do is just not talk about it. Hopefully if we wait this thing out, the news cycle will forget about it and the only people raising their voice will be nutheads like Barbara Lee.

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  21. Anderson says:

    It’s pretty clear that Congress has subpoena rights in the context of a criminal investigation

    Well, while any prosecutions would amaze me, there’s a colorable case that obstruction of justice has been committed, and that Rove for ex. might know something about it.

    At least, if I’m Leahy’s lawyer, that’s one direction I look.

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  22. James Joyner says:

    there’s a colorable case that obstruction of justice has been committed

    I think it’s more than a stretch, since the only even close call I know of in that matter involves Lam, whose term coincidentally expired the day after a key move in a prosecution. But even if we presume Rove and Company were eager to get rid of her, she’s surely not entitled to reappointment simply because the timing is bad?

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  23. Anderson says:

    The obstruction charges I’ve seen bruited focused more on Iglesias. There’s some very broad language about attempting to influence an investigation, into which Domenici & Graham’s phone calls could fit.

    Like I said, not the stuff of prosecutions, but if all they need is a subpoena hook, I think that would work.

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  24. Anderson says:

    Ah, Balloon Juice is where I saw the various crimes that might be more or less plausibly alleged.

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  25. Ugh says:

    But even if we presume Rove and Company were eager to get rid of her, she’s surely not entitled to reappointment simply because the timing is bad?

    Well, as someone remarked about this on these here internets, “at-will employment means you can fire someone for any reason – except a bad reason.” The fact that they could fire someone because they didn’t, say, like his/her handwriting doesn’t mean they can fire them because they want to stop their investigation into political allies.

    And “reappointment” is the wrong term, the get appointed and approved by the senate for a four year term, then continue to serve until a replacement – “reappointment” (at least to me) implies the senate needs to re-approve.

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  26. Ugh says:

    the last sentence of my last comment should include that “reappointment” means that the President actually needs to act to keep the U.S. Atty in office.

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  27. Anderson says:

    “at-will employment means you can fire someone for any reason – except a bad reason.”

    Not quite right. The usual phrase is “for a good reason, a bad reason, or no reason at all.”

    But not for an *illegal* reason. They couldn’t fire her for being female. Or to obstruct justice.

    But I’m not quite sure if that applies to political appointees. Can the President fire Gonzales for being Hispanic?

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  28. Tlaloc says:

    We have this little thing called Separation of Powers. Congress simply doesn’t have the right to subpoena presidential advisers. Further, it’s none of Congress’ business what private advice Karl Rove or Harriet Miers gives to the president.

    The only person in the executive branch immune to prosecution is the President, which I believe means he is the only one who can ignore a subpoena. There may be a “tradition” of congress not dragging cabinet members into to testify under oath but there was also a tradition of not wiretapping without a warrant, a tradition of not torturing helpless prisoners, a tradition of not exporting secret prisons, a tradition of respecting habeus corpus, a tradition of not politicizing science, and a tradition of not politicizing the US attorneys. After the republicans borke so many I think I’ll let the dems slide on breaking one that helps fix all the others.

    And it is absolutely Congress business if Rove has committed a crime, as the available evidence suggests is strongly possible (not proven, but suggested). The executive branch cannot police itself, Congress and the Courts however can, that’s partly why we have a separation of powers.

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  29. JohnG says:

    What crime are we talking about here? It’s not illegal for the President to fire US Attorneys. This has obviously been politically mishandled by the President and the White House, but nothing criminal here. And I’m pretty sure that beyond confirmation, there is no Congressional authority over political oversite of Executive appointees.

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  30. anjin-san says:

    James,

    I wish you had been such a strong advocate of seperation of powers for the 6 years that Bush used congress as a rubber stamp, doing much harm to our country in the process.

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  31. Tlaloc says:

    Greenwald writing at Salon takes issue with the idea that Bush can invoke executive privelege based on the same thing being tried (unsuccessfully) by Clinton and Nixon:

    http://www.salon.com/opinion/greenwald/2007/03/20/executive_privilege/index.html

    What crime are we talking about here? It’s not illegal for the President to fire US Attorneys. This has obviously been politically mishandled by the President and the White House, but nothing criminal here.

    four *possible* crimes accoriding to Adam Cohen at the NYT:

    Obstruction of Justice (two different ways, both for the firings and earlier calling some prosecutors to “influence” their actions)
    Lying to congress
    Witness tampering

    Editorial here:

    Now that doesn;t mean any crimes *were* created. That’s why we have investigations to assess the validity of suspicions. What we have now are very suspicious circumstances.

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  32. jpe says:

    “Executive privilege” is not the most clearly settled body of law in the world.

    If memory serves, it was taken as a radical extension of EP when the courts held it covered Cheney. I’m no expert on this (or even close), but from that, it strikes me as unlikely EP will cover staff members.

    Unitary congress, here we come!

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  33. jpe says:

    But I’m not quite sure if that applies to political appointees. Can the President fire Gonzales for being Hispanic?

    I’ll bet he can, but firing for obstruction and firing for discrimination intuitively seem different in kind. The former is a crime itself, whereas the illegality of the latter depends on background principles of justice and fairness.

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  34. jpe says:

    And FYI, Greenwald points us to what seems to be fairly important dicta from US v Nixon:

    “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”

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  35. James Joyner says:

    I wish you had been such a strong advocate of seperation of powers for the 6 years that Bush used congress as a rubber stamp

    Huh? If Congress passes bills that the president likes, or decides to defer to him on security matters rather than fight for their prerogatives, that’s their right.

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  36. bob in fl says:

    It is a done deal. Rove, Meirs, & 3 DoJ officials will be subpeonaed in the morning. We will see what the courts do, as Dubya won’t back down. Cowboys never give up. Meanwhile, the 3 Justice employees’ testimony will probably make the issue even more of a hot potato for Bush.

    Lest we forget, Nixon & Clinton tried the Executive Privilege bit, & lost. Either way, Bush can’t win. The story will be headline material until the Supreme Court decides the issue. And a past Supreme Court ruling states that EP only applies to national security issues. OOPS!

    An interesting side note. The part of the Patriot Act which would have applied in this case was repealed by the Senate 98 – 2. There is no doubt the House will pass it. Bush couldn’t make a veto stick if he tried. If nothing else, at least that obnoxious p[art of that law is history.

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  37. G.A.Phillips says:

    It was nice to see Bush finely put the smack-down on these sniveling little traitors! hehe!!

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  38. Anjin-San says:

    James,

    Unfortunately you have become far too much of a Bush shill to be intellectually honest about the harm done to our country by the rubber stamp GOP congress.

    The voters, in their wisdom, chose to toss a lot of GOP members out on their ears, restoring checks and balances to our government. This does not seem to please you, but it certainly pleases me.

    It was not all that long ago that we had good government in this country (setting the nonsensical Clinton impeachment aside) under a pragmatic Democratic president and a reform minded GOP congress. Oh well, those good old days have gone off to wherever it is good old days go when they are over, and we are stuck with the disaster of the Bush presidency.

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  39. Iggy says:

    Bush wants Rove and Miers to lie. Why ELSE would he refuse to allow them to testify under oath.

    There is a PILE of criminality here. The White House reaction to this is INSANE unless they are covering up something BIG.

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  40. Liviu says:

    Ugh, James,

    Firings were “performance related” and that sound bad in anybody’s book.

    For example, Mr. David Iglesias name, if you read carefully through Mr. Kyle Sampson list, you’ll see that originally was in bold characters, meaning he was a “good guy” at the time.
    Eventually his name got crossed over and just like that he became a guy with “performance deficiency”. This happened after the phone calls he received from Wilson and Domenici.

    Now, put yourself in his shoes, and truthfully say what outcome of this “brouhaha” would satisfy you.

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