Legal Commentary

Karl Rove Refuses to Comply with Congressional Subpoena

By Jeralyn

Karl Rove did not appear today before the Congressional Committee that subpoenaed him to testify regarding its investigation into the politicization of the White House, including the Don Siegelman matter.

His lawyer, Robert Luskin, explains why here (pdf). While Rove didn't claim any personal privilege, Luskin notes the White House directed Rove not to appear. His letter includes a written letter from the White House dated yesterday and two memorandums from the Justice Department explaining why Rove, as a former close adviser to the President, cannot be compelled to answer questions about matters that arose during his tenure and relate to his official duties. Luskin says Rove is immune from compelled Congressional testimony.

More...

Luskin says Rove remains willing to appear for an informal interview or answer written questions about Siegelman. If the committee isn't satisfied with the information obtained from Rove under these alternatives, it could seek to enforce its subpoena.

He concludes by saying he doesn't understand why the Committee won't agree to his alternative proposals and limit its questioning to Siegelman, rather than insisting Rove be asked about "factually distinct" matters.

A vote on the contempt citation is not expected until the end of July.

The Judiciary Committee could approve both civil and criminal contempt resolutions against Rove, which would then go to the floor of the House for a final vote.

.....But the Judiciary Committee is already in a legal battle with the Bush administration over earlier subpoenas issued to White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers. Although the House approved criminal-contempt resolutions against both, the Justice Dept., citing earlier legal opinions, refused to bring criminal charges against Bolten and Miers. The Judiciary Committee then filed a civil lawsuit against the White House to enforce the subpoenas. The case is now in federal court, and it is unclear if there will be an decision in the case prior to the start of the August recess.

My view: Let the courts decide. If the situation were reversed, I wouldn't want a Republican controlled congressional committee to have the authority to override an Executive Branch privilege or immunity claim regarding a Democratic adviser to a Democratic President. Nor do I accept the word of the Justice Department. This is why we have independent judges. That's who should make the call.

Update: Marcy at Empty Wheel says that reporters have it all wrong and that Rove and Luskin aren't claiming executive privilege but immunity and they are different.

Full post as published by TalkLeft on July 11, 2008 (boomark / email).