Monday, March 16, 2009

LTG 02-01-09: Rove's contempt

(Drafted but not published in Omaha CityWeekly)

It’s the gift that keeps on giving.

On Super Bowl Sunday, when all the oxygen in the media world is taken up with whether the Steelers’ secondary can contain Cardinals’ receiver Larry Fitzgerald and trying understand the reasons for the demise of the Lingere Bowl, most people would think the Law-Talking Guy would be challenged to find a topic for this week’s column.


Karl Rove, former political advisor to ex-President George W. Bush, will be recovering from his Super Bowl party by not appearing before Congress in response to a subpoena. This is interesting for a number of reasons, not the least of which is that there is a new administration in power (in case you hadn’t heard), and Rove’s protection for defying a subpoena is far more in question than it used to be.

Rove has been subpoenaed by the House Judiciary Committee to give testimony about the Bush-era Department of Justice, and whether attorneys were fired and people prosecuted to advance political goals. Of all the abuses of power the Bush administration is accused of – and has admitted to, in many cases – the perversion of the Justice Department might be the most far-reaching. While torture, unlawful detention, and warrantless wiretaps are frightening in and of themselves, infecting the Justice Department with blatant politicization threatens the fabric of our day-to-day legal system.

So it’s a big deal. Since the Democrats took control of the House in 2006, Rove has been subpoenaed to give testimony about his role in the Justice Department’s politicization. Rove has repeatedly ignored those subpoenas, based on advice from ex-President Bush’s counsel, Fred Fielding, to do so on the grounds of executive privilege.

Neat trick. Especially when ignoring subpoenas usually results in a stay at the Grey Bar Hotel until you comply with the subpoena. So how has Rove and other Bush administration officials gotten away with ignoring subpoenas up to this point?

Well, it helps when the guy who has stuff he doesn’t want you talking to Congress about is the President, and the guy he appointed is in charge of the Justice Department that enforces those laws. Then-Attorney General Michael Mukasey refused to enforce the subpoenas against Rove, even though Federal law says that the Attorney General shall enforce and prosecute failure to appear for a Congressional subpoena. “Shall” is one of those legal magic words that means there’s no wiggle room – the law says it, you do it, period – but Mukasey managed to avoid doing so anyway.

But Mukasey isn’t Attorney General any more. By the time you read this, President Barack Obama’s nominee, Eric Holder, will likely have been confirmed by the Senate and be the Attorney General. So it will be in his lap to decide what to do next.

Holder will first have to look at the executive privilege claim made by Rove and others. The executive privilege doctrine is, basically, the idea that advisors to the President should not be forced to discuss the contents of their advice. To do so, the theory goes, would mean that people might be uncomfortable giving advice to the President (if, for example, they were advising the President to unlawfully use the Justice Department as a tool of a particular political party, or some other ridiculous example), and the President would thus be denied effective assistance.

The privilege, which is like any other privilege such as doctor-patient or attorney-client, was first named by Dwight Eisenhower, although Presidents have been refusing to tell stuff to Congress since George Washington. The privilege was recognized by the Supreme Court in 1974 in U.S. v. Nixon. However, the Supreme Court held the privilege was “limited” and specifically found that it does not grant “absolute privilege,” meaning that there are going to be times when a person has to talk about advice to the President under oath.

Rove’s position, backed by Fielding’s argument, is that executive privilege covers everything, and is so sweeping that Presidential advisors are “constitutionally infirm” from testifying about anything. And if you’re struggling to see how someone could read a privilege that is not absolute to mean that Rove is “constitutionally infirm” from testifying, welcome to the club. It’s your turn to bring the cookies to the next meeting, though.

It seems all but certain that Fielding’s blanket immunity argument will be thrown out – likely laughed out – of court when it is finally challenged. That’s even more likely when you realize that Rove has consistently said the President never knew anything about what was happening at the Justice Department. Even at its’ broadest stretch, it’s hard to imagine how a privilege can cover information you didn’t give to the President. And that will make for some interesting drama once these cases wind their way through the system in a year or so.

It’s clear that Obama has little interest in pursuing the previous administration in any meaningful way. He and his advisors have gone out of their way to dodge any questions about whether anyone who participated in torture or illegal detentions – you know, war crimes – will be prosecuted. If he’s not going to go after government officials who literally broke the law and killed people, it’s unlikely that a contempt of Congress charge will excite them into action.

However, because these cases are proceeding in courts and through Congress, the Obama administration may have far less control over the outcomes than they do with the war crimes non-investigations. Could we be looking at a scenario where torturers get away scot free and folks involved with illegally politicizing the Justice Department go to jail?

In the words of Gov. Sarah Palin, you betcha. (See, I told you it was all about the gifts that keep on giving!)

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