Law

Rove Has ‘Absolute Immunity’, Ex-White House Counsel Says

Earlier this month, the House Judiciary Committee also quietly subpoenaed former White House Counsel Harriet Miers and George Bush’s former Chief of Staff Josh Bolten. The former advisers never showed up, according to documents.

By Jason Leopold

Former White House senior adviser Karl Rove said he would ignore a Congressional subpoena that calls for him to appear before the House Judiciary Committee Monday to give a deposition on the politicization of the Justice Department because former President George W. Bush gave Rove “absolute immunity” before he left office.

In an interview Thursday with right-wing talk show host Bill O’Reilly, Rove, who is also a Fox News contributor, said one of former President Bush’s last acts before he left office was to have White House Counsel Fred Fielding write a letter stating that Rove was protected by “absolute immunity” and that he can legally ignore a congressional subpoena.

“I’ve been directed on Jan. 16, by the outgoing president’s legal counsel not to respond to a subpoena…exerting privilege on behalf of the former president,” Rove said.

The letter Fielding wrote was addressed to Robert Luskin, Rove’s longtime Washington, D.C. attorney. It appears that Luskin requested the letter on behalf of Rove who was likely aware that Congress would continue to pursue his testimony after Bush left office.

“On behalf of your client, former Senior Adviser to the President Karl Rove, you have previously asked us whether, in view of the President’s assertion of Executive Privilege over Mr. Rove’s testimony relating to the U.S. Attorneys matter, he must appear, give testimony, and produce documents to the House Judiciary Committee,” Fielding’s letter says, according to a copy obtained by The Public Record. “We have previously been advised by the Department of Justice that Mr. Rove has absolute immunity from compelled Congressional testimony as to matters occurring while he was senior adviser to the president.” 

“We anticipate that one or more committees of the United States Congress might again seek to compel Mr. Rove’s appearance, testimony or documents on the subject of the U.S. attorneys matter,” Fielding’s letter to Luskin says. “Please advise Mr. Rove that the President continues to direct him not to provide information (whether in the form of testimony or documents) to the Congress in this matter and that consistent with the president’s exercise of executive privilege relating to his testimony, and documents, and in view of the Department’s longstanding position on the immunity question, the President directs him, in the exercise of this constitutional immunity, not to appear before Congress on this matter.”

Luskin sent the letter to President Barack Obama’s White House Counsel, Greg Craig, seeking the Obama administration’s position on matters related to Bush’s unprecedented privilege claims even though he is no longer president. White House Press Secretary Robert Gibbs said Craig is reviewing it.

House Judiciary Committee Chairman John Conyers said in a statement Monday that the Bush administration’s “absolute immunity position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as “completely misguided.”

President Barack Obama stated during Campaign 2008 that he believed Bush was overreaching with his claims of executive privilege. On his first full day in office, Obama also signed an executive order reining in the power of former presidents to keep their historical records secret.

Obama directed the National Archives and Records Administration to consult with the Justice Department and White House counsel “concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the presidential records notwithstanding the claim of privilege.”

Bush administration officials have previously said that former President Bush was unaware of and played no role in the decision to fire federal prosecutors. Since executive privilege usually applies to internal communications and documents it’s unclear how the privilege rule would apply to Rove’s testimony if Bush never discussed the firings or played a role in the dismissals as he and his advisers have maintained.

Fielding also sent letters to attorneys representing former White House Counsel Harriet Miers and Bush’s former Chief of Staff Josh Bolten, both of whom were subpoenaed last year to provide the Judiciary Committee with documents and testimony related to the attorney firing. Bush asserted executive privilege in that case as well.

In fact, according to letters sent to Elliot Mincberg, chief counsel of oversight and investigations for the Judiciary Committee, by Miers attorney, the Judiciary Committee had quietly issued a subpoena to her on Jan. 9. Miers was asked to provide a deposition to the panel on Jan. 16. She did not comply with the subpoena and John Conyers, the chairman of the House Judiciary Committee, did not state publicly that he sought her testimony earlier this month.

Miers’ attorney, George Manning, wrote to Mincberg Jan. 15, and enclosed a copy of a letter Fielding prepared on Jan. 15 which said Miers had “absolute immunity.”

“I am in receipt of the subpoena to Ms. Miers dated January 9, 2009,” Manning’s letter says. “Please find attached a letter from the Counsel to the President of the United States informing Ms. Miers that, in view of the Executive Branch’s assertions of executive privileges and immunities in this matter, she continues to be directed not to provide information (including documents or testimony) to the Congress in this matter, including the deposition scheduled for January 16, 2009.”

Earlier this month, a new set of House rules was passed reviving subpoenas issued during the 110th Congress.

Fielding sent similar letters last year on behalf of Rove, Miers and Bolten after all three were subpoenaed to testify about the role the White House played in the firings of nine U.S. Attorneys in December 2006 and Rove’s role in the apparent political prosecution of former Alabama Gov. Don Siegelman.

That letter said the “President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.”

Last year, the Justice Department’s Inspector General and the Office of Professional Responsibility issued a 356-page report on the U.S. Attorney firings that “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.”

Inspector General Glenn Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, found that Miers was involved in at least two of the dismissals and that Bolten played a role in at least one.

Neither Miers nor Bolten agreed to be interviewed by the Justice Department’s internal watchdogs.

Bolten and Miers were contacted by Nora Dannehy, a federal prosecutor from Connecticut who was appointed by Attorney General Michael Mukasey to continue the investigation of the U.S Attorney firings, according to people familiar with her probe. It’s unknown, however, whether they cooperated or were subpoenaed.

Dannehy is expected to file a preliminary report with the Justice Department in March.

The dispute over Miers and Bolten’s testimony arose when President Bush forbade them to comply with a congressional subpoena about the prosecutors’ firings in 2006. The House then voted to hold the two officials in contempt of Congress, the first time in 25 years a full chamber of Congress has voted on a contempt-of-Congress citation.

In September 2008, U.S. District Judge John Bates rejected Bush’s position, saying the concept of blanket executive privilege lacked legal precedent.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” wrote Bates, a Bush appointee. “In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

Last October, a Republican-dominated federal Appeals Court panel blocked the enforcement of the Judiciary Committee subpoenas. The panel also refused to expedite consideration of a White House appeal challenging a District Court ruling that had ordered Miers and Bolten to comply. Conyers’ committee appealed the decision. The matter has yet to be decided.

In his Fox News interview with Bill O’Reilly, Rove mentioned the Miers and Bolten case currently before the U.S. Court of Appeals for the District of Columbia.

Rove said Conyers should have waited until the judicial body ruled on the matter before issuing a subpoena for his testimony. Rove then went on to criticize the Michigan Democrat while portraying himself as a victim.

“I don’t know if I’d call it a witch hunt; I don’t think of myself a witch,” Rove told O’Reilly. “He’s sort of like Captain Ahab, and I’m the whale.”

“This is a guy who went to the cloakroom and asked to ‘get his’ – and then filled in a crude way to describe my posterior,” Rove said. “He could wait until the United States judicial system resolves how this ought to be handled, but instead he wanted to have a stunt, and we’ll see what happens.”

The Judiciary Committee has been seeking Rove’s public testimony about the Siegelman case since April as part of its investigation into allegations that the Bush administration used the Justice Department to prosecute more Democratic public officials than Republicans.

Rep. John Conyers, the Judiciary Committee’s chairman, had rebuffed a compromise floated by Rove’s attorney, Robert Luskin, to have Rove testify in private or respond in writing to the committee’s inquiries about the Siegelman case, as well as the firing of nine U.S. Attorneys.

If Rove fails to show up Monday, which is likely the case, the full House will likely vote to hold Rove in contempt, said Rep. Jerrold Nadler, D-NY, during an interview with MSNBC’s Keith Olbermann.

“If he refuses to show up, we’re going to have to vote a contempt citation,” Nadler said.

What would transpire if Rove were held in contempt is that Congress would refer the matter to the U.S. Attorney for the District of Columbia who would then convene a grand jury and try and secure an indictment. Rove could be arrested if he refused to appear before Congress if ordered to do so at that point, Nadler said.  

“Normal contempt is, you simply arrest him,” Nadler added. “The grand jury indicts him, you arrest him for contempt and you put him in jail until he is prepared to testify, to obey the subpoena.”

Nadler said Rove can’t continue to “thumb his nose at Congress” and refuse to respond to a subpoena.

When asked by O’Reilly if he intended to appear before Congress Monday, Rove said, “no.”

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