Rove Escapes Testimony, For Now…
January 29th, 2009Monday House Judiciary Committee Hearing Delayed
More still coming in down below, in the comments…
Just four days before he left office, President Bush instructed former White House aide Karl Rove to refuse to cooperate with future congressional inquiries into alleged misconduct during his administration, according to a story just out on Newsweek’s Website.
Key excerpts:
- On Jan. 16, 2009, then White House Counsel Fred Fielding sent a letter to Rove’s lawyer, Robert Luskin, (linked as a pdf on the site) saying if his client were to receive any future subpoenas, Rove “should not appear before Congress” or turn over any documents relating to his time in the White House. The letter told Rove that President Bush was continuing to assert executive privilege over any testimony by Rove — even after he leaves office.
- The letters set the stage for what is likely to be a highly contentious legal and political battle over an unresolved issue: whether a former president can assert “executive privilege,”and therefore prevent his aides from testifying before Congress — even after his term has expired.
“To my knowledge, these [letters] are unprecedented,” said Peter Shane, an Ohio State University law professor who specializes in executive-privilege issues. “I’m aware of no sitting president that has tried to give an insurance policy to a former employee in regard to post-administration testimony.” Shane likened the letter to Rove as an attempt to give his former aide a ‘get-out-of-contempt-free card’.”
- The issue arose this week after House Judiciary Committee Chairman John Conyers announced that he had subpoenaed Rove to be deposed under oath next Monday to answer questions about his alleged role in the firing of U.S. attorneys and the prosecution of the former Democratic governor of Alabama, Don Siegelman. Conyers, whose panel extensively investigated both matters last year, signaled that he has no intention of dropping them now just because Bush has left office.
- Luskin said that he forwarded a copy of Fielding’s letter, as well as the subpoena he got from Conyers, to Obama’s White House counsel, Greg Craig, and essentially asked for the new president’s position on these matters, according to Newsweek.
So far Craig hasn’t responded. He could have a conflict of interest on his hands due his friendship with Siegelman, and his past representation of Rove, which is not dealt with in the Newsweek article. Stay tuned…
Luskin also says he has asked the House Judiciary Committee to postpone its deposition of Rove until he hears back. The committee has agreed to put off the deposition — but only for a few weeks.
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Bill O’Reilly of the Fox Fake Patriotic Republican network (a.k.a. the Fuck You PR network), offers Rove a tunnel to hide in…anytime?
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The issue is likely to come to a head soon. The Justice Department is due to state its position on executive privilege to the U.S. Court of Appeals in a few weeks in response to the House’s attempt to enforce its previous subpoenas for Miers and Bolten, who were subpoenaed to turn over documents relating the U.S. attorneys firings. Both refused to comply, or even show up — relying on the Bush Justice Department’s sweeping position on “absolute immunity” from testifying before Congress.
Few legal observers expect the Obama Justice Department to endorse that position, but it remains an open question how the new administration will define the scope of presidential privilege.
It came as “nothing too surprising actually,” to Scott horton, a New York attorney, Distinguished visiting professor at Hofstra Law School and contributing editor to Harper‘s magazine. “We knew that Rove would try to dodge his appearance based on his ‘instructions’ from Bush. We still need to see the Obama White House’s response but they almost certainly will not agree that Rove has a right to avoid appearance before the committee,” he said in an e-mail interview. “And if Rove then fails to appear, the new Justice Department will most likely enforce the contempt sanction after Congress votes it.”
Rachel Maddow had Luskin on her show on MSNBC Thursday night.
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Tags: For Now..., Rove Escapes Testimony
January 29th, 2009 at 9:16 pm
Fuck them! (Am I allowed to say that here, Glynn?)
They are in no position to do anything unprecedented.
January 29th, 2009 at 9:28 pm
Why not? I do…
One would think.
JS says get the bounty hunter Dog after him…
I tend to agree : )
January 29th, 2009 at 9:58 pm
I just posted this:
Representative Jerrold Nadler (D-House Judiciary Committee) walks us through what’s in store for Rove.
1. Rove fails to show up for hearing.
2. The Committee then the whole House votes on a contempt citation.
3. The contempt citation is then given to the U.S. Attorney “whose duty it shall be” to deliver to the Grand Jury….according to the law.
Rove is arrested, goes to court and either testifies or sits in jail. Horton said he didn’t think Rove would let it go so far as to let himself end up in jail.
January 29th, 2009 at 10:48 pm
Damn. Take a break for a few minutes to run to the Yuengling store and visit my favorite checker Marylin Monroe and, and … more news breaks. What a news day, eh?
January 29th, 2009 at 11:03 pm
Just added an MSNBC video showing O’Reilly offering Rove a tunnel to hide in. Not sure if it’s the same one. Different photo on the front…
January 30th, 2009 at 8:42 am
Oh, it’s clear to me that tunnel is up Orally’s ass
January 30th, 2009 at 8:50 am
Rove is just the tip of the iceberg, so to speak. The rest of the berg consists of folks such as Cheney, Gonzales, Wolfowitz et al who, between them, conducted the most coordinated offensive against the Constitution and Bill of Rights in history.
Those documents are the fundamental basis of the nation, the first in history founded, not on accident of geography, or ethnicity or conquest, on an idea – the idea of liberty.
Eviscerating the Constitution and Bill of Rights, which the neocons named did everything they could to do, is a reprehensible crime, in my opinion, something very similar to if not the same as treason.
Whether any of them, besides the feckless Rove, spend any time in jail, even at “Club Fed” down at Maxwell, is an open question, although in my opinion they should.
Rove is indeed an evil genius, but he was not the main ideological motivators of the Bush regime — Cheney and Wolfowitz were.
January 30th, 2009 at 12:06 pm
From Don Siegelman via e-mail:
Let’s wait and see what happens Monday: Superbowl Subpoena Playoff Monday. If President Obama does not agree with President Bush’s view of Executive Privilege “Blanket Protection” and agrees with the U.S. District Judge Robert Bates’ decision then Rove should appear and be forced to claim the privilege with regard to each question asked. The Committee would then grant or deny his claim to each, thus setting up another court challenge and ultimate Superbowl Subpoena Showdown Day at some point in the future.
January 30th, 2009 at 4:54 pm
From Pam’s List, Democrats.com, etc.
Conyers Letting Rove Delay for Weeks
That’s the story now. The excuse is supposedly a delay from the White House.
But Congress has no need of the White House to enforce its own subpoenas and should not want its help. Conyers should ask the Capitol Police to do for Rove what they do for anyone who speaks too loudly in a hearing: lock him up.
USE INHERENT CONTEMPT!
How to Put Rove Behind Bars for Years
Submitted by dswanson on Wed, 2008-08-06 19:41.
By David Swanson
Last August, a group of Congressman Henry Waxman’s constituents met with him and urged him to make use of inherent contempt. They were then obliged to explain to him what inherent contempt is. While the current (110th) Congress has probably seen more requests, subpoenas, and contempt citations ignored than all previous Congresses combined, Waxman has certainly endured more such insult than all other committee chairs combined in the current Congress. He’s single-handedly destroyed whole forests with the flood of letters and requests and subpoenas he’s sent down Pennsylvania Avenue, and yet he was apparently unaware of a procedure commonly used by Congress through most of this nation’s history that would actually compel people to show up and answer questions and produce documents.
Over the past 12 months a vague sort of awareness of inherent contempt has crept into the minds of certain committee members and party leaders, almost entirely as a result of thousands of citizens demanding that they immediately make use of it. Quasi-grass-roots groups afraid to demand impeachment have taken up the cry for inherent contempt, but pro-impeachment groups have not all paid sufficient attention to it, their eyes set on a bigger and better prize. And, of course, in a sane world we would see impeachment happening. The latest overwhelming piece of evidence of the most egregious impeachable offense conceivable comes from Ron Suskind’s book released this week reporting that Iraq’s intelligence chief had informed the United States prior to the 2003 invasion of Iraq that Iraq possessed no weapons of mass destruction. George Tenet and the White House have admitted the truth of this, but absurdly dismissed it as unimportant.
However, here’s an additional vital piece of information: our so-called representatives only intend to pretend to work for two more weeks this year, and those two weeks are scheduled for September. If anything could move them to impeachment (and more days at the office), perhaps a fight over inherent contempt could. Therefore, I propose we all demand one. (And if you bear with me, I’ll tell you exactly what inherent contempt is.)
Congresswoman Zoe Lofgren recently wrote the following dismissive letter to her constituents who were demanding inherent contempt:
“Thank you for contacting me about Karl Rove’s failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove’s failure to testify very seriously, and we are currently considering all options – including contempt proceedings — to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement ‘inherent contempt’ as if that is a viable option. The jail cell in the basement of the Capitol doesn’t exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters. Again, thanks for being in touch. Please do not hesitate to let me know if I may ever be of assistance to you or your family.”
Congresswoman Lofgren is very badly informed or chooses to pretend to be. The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as “inherent self-protection”. There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of “inherent contempt” a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a Congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. With labor unions banned on Capitol Hill, there shouldn’t be any legal difficulties in immediately rearranging a few employees of the government.
When inherent contempt began to be discussed in 2007, having not been heard of in some 75 years, the Politico (never a publication overly careful with facts) reported that the jail had been razed in 1929. Congresswoman Lofgren, on the other hand, maintains that “the jail cell in the basement of the Capitol” doesn’t exist. She seems to take no position on whether such a thing ever did exist. Both of these replies wildly miss the mark. The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly.
The reference to 1929 may be a reference to the building that stood on the current site of the Supreme Court building, construction of which began that year. The Old Capitol Prison was not the only thing housed in that building when it was there, was not among the initial uses for that building, and had long since ceased to be used by Congress when the building was razed. During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional “contumacious witness” in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article . This 1934 article from Time magazine discusses the Senate’s use of the District Jail to punish contempt in both 1860 and 1934.
In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.
Congress has not always made use of outside jails. In 1868 this measure was approved: “Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified…. Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker.”
The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. The room where we held the Downing Street Minutes hearing in June of 2005 would work fine with very few modifications. And — I’m sure this will surprise you — DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.
Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers’ office last summer to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn’t seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a “State of the Union” speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her.
But if use of the police has vanished since 1934 as a tool for enforcement of Congressional contempt, then what did Congresswoman Lofgren mean by suggesting that her committee was contemplating “contempt proceedings”? Well, she meant that — in fulfillment of the popular “definition” of insanity — Congress would consider doing with Karl Rove what it has long been doing with Harriet Miers and Josh Bolten, that is: waiting for the executive branch of our government to go through some sort of magical conversion and begin prosecuting its own most loyal criminals.
In the early years of this country inherent contempt was not distinguished as “inherent”. It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of “self-protection”. This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. (Interestingly, the record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him [or her, Miers may be the first her] on trial, does not have to be preceded by a subpoena. That answers another question asked aloud by Rep. Waxman in a recent hearing.)
Common Cause recently advocated inherent contempt with this statement: “Under the inherent contempt power, the House Sergeant-at-Arms has the authority to take Karl Rove into custody and bring him to the House where his contempt case can be tried, presumably, by a standing or select committee. If he is found by the House to be in Contempt of Congress, he can be imprisoned for an amount of time determined by the House (not to exceed the term of the 110th Congress which ends the beginning of January 2009) or until he agrees to testify. The Supreme Court has recognized the power of the House to enforce its own subpoenas through the inherent contempt provision, stating that without it, Congress ‘would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.’ Before Congress asked the Justice Department to try contempt cases on its behalf, the inherent contempt power was used more than 85 times between 1795 and 1934, mostly to compel testimony and documents.”
Even the Washington Post agrees: “Both chambers also have an ‘inherent contempt’ power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.”
Before moving on, and before I forget, I should point out that there is a reason my title claims we can put Rove away for years, while the proposal from Common Cause would only lock him up until next January. While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress. And, remember that while the House Judiciary Committee just recently voted to hold Rove in contempt, the Senate Judiciary Committee voted to do that last December. It simply hasn’t yet done it, choosing to defer to the full Senate, which chooses to shut its eyes, cover its ears, and hum.
But deferring to the full House or Senate is part of the tradition of statutory contempt, not inherent contempt. It has been solidly established that inherent contempt resides in a full house or a committee. So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses. Given what Congress spends its precious time on these days, who wouldn’t wish for it to have back its inherent contempt power? Well, our wish is granted. Congress never lost that power, and in fact continued to exercise it up through 1934since when it has simply chosen not to. Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House’s contempt citations for Miers and Bolten now are. Delaying that court decision until the next Congress, which seems likely, makes the possibility of enforcement unlikely. And if a decision were reached, it would fall to Congress to use inherent contempt to enforce it anyway.
On April 15, 2008, the Congressional Research Service (CRS) laid out its understanding of contempt powers in an updated report
This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today’s members of Congress will hardly deign to speak with anyone who has not properly bribed them through our “campaign financing” system, at that time this action was considered an insult to the dignity of Congress. Yes, Congress was believed to possess dignity. (Another early case involved a newspaper falsely reporting that the Senate had passed a bill. Nowadays it’s acceptable for the president to falsely sign a bill that wasn’t passed. False reporting these days is almost considered a patriotic duty.)
The CRS report disagrees with the Bush administration’s assertions of “executive privilege” but cannot change the fact that they are likely to be raised again as often as needed. And the report suggests that the Fifth Amendment right to avoid self-incrimination applies in certain contexts. However, past tradition makes that claim debatable, and the statute reads:
“U.S. CODE TITLE 2–THE CONGRESS
CHAPTER 6–CONGRESSIONAL AND COMMITTEE PROCEDURE; INVESTIGATIONS
Sec. 193. Privilege of witnesses
No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.”
The power of Congress that I am proposing it use or lose is not the sort of power the White House has claimed to randomly kidnap, detain, disappear, torture, and murder. Everything Congress does in this regard must be open and public. It must not randomly, even if publicly, arrest someone for an offense unrelated to contempt of Congress – or for no offense at all. It must allow communication with legal counsel and family. It must treat everyone humanely. It must not abuse its power, and such abuses must be checked by the judicial branch. The purpose of Congress detaining prisoners is to compel them to produce information believed to be of potentially vital importance to the governance of our nation.
The CRS report provides very little background on this, but a great deal can easily be had. Simply look up Hinds Precedents , especially chapters 53 and 51, and Cannon’s Precedents , especially chapters 184-185. You’ll find numerous detailed cases of Congress asserting its power, arresting people, holding them until they agreed to answer questions, and then releasing them. Some of these people did not refuse to appear, but simply failed to satisfactorily answer questions. One has to wonder how a previous Congress might have responded to Alberto Gonzales’s endless recitations of “I do not recall.”
In 1857, a New York Times reporter refused to say which members of Congress had asked him to get them bribes (protecting his “sources” just as various Judith Millers today protect the people who feed them proven lies that costs thousands of lives), so Congress locked him up until he answered and then banned him from Congress. Imagine trying that with ABC News executives until they revealed who fed them the anthrax-is-from-Iraq lies.
In 1924 an oil executive appeared but refused to answer certain questions, so the Senate held — literally held — him in contempt. Senator Thomas Walsh of Montana argued that this question of contempt was of the gravest importance, and that it involved “the very life of the effective existence of the House of Representatives of the United States and of the Senate of the United States.” The matter was taken to court, and the witness fined and imprisoned. Imagine locking up the attendees of Cheney’s secret energy task force meetings until they explained how our supposedly democratic government arrived at some of its worst recent decisions.
Various cases of contempt in the past have involved perceived insults to Congress and have been resolved by a simple apology. This may strike people today as humorous and vain. I find less fault in it than I do in today’s Congress, which appears completely incapable of feeling either shame or self-respect. If impeachment is off the table, inherent contempt is in the past, contempt citations are delayed until moot, subpoenas are laughed at, FOIA requests are tossed in the trash, and other appeals to the executive branch to please allow itself to be overseen are simply ignored, then I must agree with Senator Walsh that we are witnessing the very death of the House and Senate. The capacity to hold someone in contempt, on its own, in September, would be a sign of life in what otherwise appears a motionless corpse.
http://davidswanson.org/node/1416
January 30th, 2009 at 6:48 pm
Rove deposition date moved back, according to AP
The House Judiciary Committee has rescheduled a deposition for former senior White House adviser Karl Rove, ordering him to appear Feb. 23 instead of Monday.
(snip)
Rove attorney Robert Luskin said his client was free to answer questions on the Siegelman prosecution.
Hmmm…
Rove Deposition Date Moved Back to Feb. 23
January 30th, 2009 at 9:05 pm
Rove should be a prison; not fancy white collar housing with FOXNews and Cinemax but a max security lockup with a sodomy-obsessed bunk mate so he’ll get a daily reminder of what he did to this country.
I’m all for loading a space ship with these assholes – leave room for Bush, Madoff, etc. – and send them all into a black hole. See if money and power will help them escape something that even light cannot escape.
Whoosh.