Former White House political adviser Karl Rove has defied a congressional subpoena for the third time.
Rove was scheduled to be deposed by the House Judiciary Committee Monday about the role he allegedly played in the firings of nine U.S. Attorneys and the criminal prosecution of former Alabama Gov. Don Siegelman.
But Rove refused to appear before the committee citing executive privilege. Rove was in Chicago Monday hosting a fundraiser for Republican politicians.
Reached Monday evening, Jonathan Godfrey, a spokesman for House Judiciary Chairman John Conyers, declined to comment. Rove’s attorney, Robert Luskin, did not return calls for comment.
Last week, White House Counsel Gregory Craig, Bush’s lawyer Emmett Flood and House Counsel Irv Nathan said they were locked in intense negotiations over the testimony of Rove and former Bush advisers Harriet Miers and Josh Bolten and may soon reach some sort of deal that will result in their testimony before the House Judiciary Committee.
Conyers subpoenaed Rove for the second time this year two weeks ago, while negotiations over Rove testimony were reportedly taking place, demanding he appear before his committee to talk about the politically motivated firings of the federal prosecutors and the role he and the White House played in their dismissals.
Luskin recently told Conyers that Rove would be willing to talk about the prosecution of Gov. Siegelman but would not talk about the U.S. Attorney firings because he was protected by “absolute immunity.”
Four days before Bush left office, Fred Fielding, Bush’s former White House counsel, wrote a letter directing Rove and other former Bush administration advisers to ignore subpoenas. Fielding said Rove is “absolutely immune” from compelled congressional testimony even though Bush is no longer President.
In his last years in office, Bush succeeded in frustrating congressional inquiries by asserting a sweeping interpretation of executive privilege, a tradition that grants some confidentiality for advice between the President and his top aides. Bush expanded the scope of the privilege to include even discussions among his subordinates inside and outside the White House.
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.”
Conyers rejected Luskin’s offer to limit Rove’s testimony to the Siegelman matter. In a letter he sent to Luskin two weeks ago, the Michigan Democrat said “the request to unilaterally limit Mr. Rove’s testimony to the Siegelman matter, as we have previously discussed, I do not believe it is acceptable for the Committee to allow witnesses to unilaterally determine what they can and cannot testify concerning, again absent assertion of a valid privilege.”
“Moreover, the proposed distinction between the Siegelman matter and the U.S. Attorney investigation generally does not appear to be a tenable or viable distinction. They are part and parcel of the same serious concerns about politicization of the U.S. Attorney corps and the Justice Department under the Bush Administration.”
Despite Rove non-appearance Monday, it’s unlikely, that Congress will pursue contempt charges against Rove while negotiations over Miers and Bolten’s testimony continues, aides to several Democratic lawmakers said Monday.
Earlier Monday, the U.S. Court of Appeals for the D.C. Circuit granted the Obama administration an extra week in filing legal briefs stating whether it would support Bush’s broad claims of executive privilege. The deadline for filing legal briefs was originally scheduled for Feb. 18.
Last week, the DOJ asked the appeals court to delay until March 4 a deadline for the Obama administration to file legal briefs while negotiations played out, which the appeals court agreed to do on Monday.
In requesting an extension to file legal briefs, Acting Assistant Attorney General Michael Hertz asked the appeals court to allow the administration more time to negotiate a settlement due to “complicated and time consuming discussions” involving “sensitive separation-of-powers questions presented in this appeal.”
In court papers filed last week, Hertz said, “The inauguration of a new President has altered the dynamics of this case and created new opportunities for compromise rather than litigation. At the same time, there is now an additional interested party-the former President-whose views should be considered. Negotiations are now ongoing. These tripartite discussions have been complicated and time consuming.”
Craig, the White House counsel, issued a statement last week stating that Obama has encouraged all sides to enter into a settlement and avoid a prolonged legal battle.
“The President is very sympathetic to those who want to find out what happened,” Craig said. “But he is also mindful as President of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle.”
Still, it’s unclear how negotiations between the Obama administration and attorneys for Bush and his former adviser are shaping up.
Last year, similar talks between Congress and the Bush administration were held last year over Bolten’s and Miers’s testimony were attempted. Then-White House Counsel Fred Fielding wrote to Conyers requesting a meeting, saying the White House was interested in working “cooperatively to resolve these issues.”
However, the talks proved fruitless and Nathan, the House counsel, characterized the negotiations as “completely useless.”
“We have not found willing partners on the other side of the table,” Nathan said in federal court hearing last year. “We’re being dunced around here.”
Last year, Rove also attempted an end-around against Democratic leaders by having his denial of sponsoring Siegelman’s prosecution inserted into the Congressional Record by Rep. Lamar Smith of Texas, the Judiciary Committee’s ranking Republican.
In written responses to questions from Smith, Rove denied speaking to anyone “either directly or indirectly” at the Justice Department or to Alabama state officials about bringing corruption charges against Siegelman.
Siegelman was convicted of corruption in 2006, but was released from prison on bond in March 2008 after an appeals court ruled that “substantial questions” about the case could very well result in a new trial or a dismissal.
Siegelman has long maintained that Rove was intimately involved in the prosecution as part of a strategy to blunt Democratic southern inroads that Siegelman’s governorship represented.
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