It's one of those wonders of nature that Karl Rove is still walking around among us, a free man. The guy who was instrumental in everything from election theft and phony voter fraud searches to political prosecutions to outing a CIA agent, who got five shots at getting his grand jury testimony right (in the Plame affair) and STILL managed to avoid the leg irons, and who was in the room during probably every criminal activity that took place in the Bush White House for eight years, has gotten a deal -- yes, a DEAL -- in order to comply, at long last, with a Congressional subpoena. (Harriet Miers got one too. At issue: the U.S. attorney firings.)
A lesser warlock would be in the jail under the Senate building by now...
Poll: Most Americans say, 'investigate the bastard'
Dubya flipped off the Constitution, too...
A new poll shows that Americans want at least for there to be an investigation of torture under the Bush regime.
Even as Americans struggle with two wars and an economy in tatters, a USA TODAY/Gallup Poll finds majorities in favor of investigating some of the thorniest unfinished business from the Bush administration: Whether its tactics in the "war on terror" broke the law.
Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants. Almost four in 10 favor criminal investigations and about a quarter want investigations without criminal charges. One-third said they want nothing to be done.
The breakdown is as follows:
Regarding possible use of torture in terror interrogations:
Criminal investigation: 38%
Independent panel: 24%
Not sure: 2%
Meanwhile, when it comes to politicizing the Justice Department, even more of those polled want a probe:
Re possible attempts to use the Justice Department for political purposes:
Criminal investigation: 41%
Independent panel: 30%
And finally, regarding the "possible use of wiretaps without a warrant":
Criminal investigation: 438%
Independent panel: 25%
Read more of the Gallup poll here. Meanwhile, when it comes to torture prosecutions, civil libertarians like Jonathan Turley are not backing down:
Two must-read articles on the HuffPo, both having to do with the legal twists and turns of the former president.
First up: Bush's last minute end run around accountability, in the form of letters issued to memebers of his now defunct administration, attempting to immunize them against probes by Congress:
Michael Isikoff reported for Newsweek that while many of us were fomenting about Bush preemptively pardoning at-risk members of his administration, he and his lawyer Fred Fielding (White House Counsel) were concocting one last expansion of executive privilege. Four days before he left office, Mr. Bush authorized Fielding to write letters to Harriet Miers and Karl Rove giving them "absolute immunity" from Congressional inquiry and prosecution. Preemptively. In perpetuity. Absolute and irrevocable.
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.
These letters were delivered before Congress or any prosecutor had initiated action against Miers and Rove. Clearly Bush sought to inoculate Rove and Miers from all attempts to prosecute them for their actions during his administration. Only when John Conyers (Chairman, House Judiciary Committee) subpoenaed Mr. Rove did the letters come to light. Waving his letter in the air, Karl Rove refused to appear before the committee.
Read the full Isikoff piece here. Meanwhile, Dick Cheney gave his own set of interviews, all but daring the new administration to charge him with a war crime for ordering torture, he says, at Bush's behest. Wonder if he has a letter, too...
Next up: Slate uncovers a college thesis by none other than Liz Cheney (the non-gay Cheney offspring, who apparently was an inspiration to her father in more ways that one. The thesis was called "The Evolution of Presidential War Powers 1988." ...
In 1988, while Dick Cheney was Wyoming's sole representative in the House of Representatives, his daughter's senior thesis was quietly published in Colorado Springs. The 125-page treatise argued that, constitutionally and historically, presidents have virtually unchecked powers in war. Thirteen years before her father became vice president, she had symbolically authored the first legal memorandum of the Bush administration, laying out the same arguments that would eventually justify Guantanamo and extraordinary rendition, wiretapping of American citizens, and, broadly, the unitary theory of the executive that shaped the Bush presidency.
Elizabeth's thesis contains such gems as the justifiable fabrication of enemy attacks to launch pre-emptive wars, and other nuggets of the founding father's hidden intent:
Elizabeth Cheney begins her survey at the Constitutional Convention. Contrary to today's middle-school mythology, she tells us, fear of enabling a tyrannical monarch was not foremost in the Founding Fathers' minds. Rather, they did not want to repeat the failure of the Continental Congress' attempts to manage the war for independence. Our constitutional architects, she argues, believed they could not "foresee every possible future use of American armed forces" and, as a result, wanted a commander in chief endowed with great latitude in wartime.
For Cheney, Thomas Jefferson established the path presidents would and should take when dealing with Congress. In engaging American warships against Barbary pirates, Jefferson "chose to inform Congress of his actions at his own convenience." When he did, he fabricated an attack on an American ship to secure their support.
Alberto Gonzales, who has kept a low profile since resigning as attorney general nearly 16 months ago, said he is writing a book to set the record straight about his controversial tenure as a senior official in the Bush administration.
Mr. Gonzales has been portrayed by critics both as unqualified for his position and instrumental in laying the groundwork for the administration's "war on terror." He was pilloried by Congress in a manner not usually directed toward cabinet officials.
"What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?" he said during an interview Tuesday, offering his most extensive comments since leaving government.
During a lunch meeting two blocks from the White House, where he served under his longtime friend, President George W. Bush, Mr. Gonzales said that "for some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror."
The 110th Congress has already disgraced itself in any number of ways, by bowing and scraping to a lame duck president who nobody but them takes seriously anymore (the latest instance being the FISA bill.) If the Judiciary Committee, led by the incredibly underwhelming John Conyers (who talked tough on impeachment until he got the gavel,) fails to respond to the naked affront to its authority by Karl Rove, who blew off the committee today by refusing to respond to a lawful subpoena regarding his role in the politicization of the Justice Department and the political prosecution of the former governor of Alabama, then they aren't worthy of holding their offices. Either the Judiciary Committee enforces that subpoena, or they admit that, just like Dick Cheney planned it, the Congress is no longer a co-equal branch of the U.S. government, confirming that we are indeed living in a post-Constitutional age.
The outrageous behavior of the arrogant Bushies, including Rove, is made worse by the new attorney general, Michael Mukasey, who replaced the boob from Texas, Alberto Gonzales. Back in May, Joseph Palermo wrote the following about the timid Mr. Mukasey:
Not since the time of Richard Nixon's Attorney General, John Mitchell, who was the only Attorney General in American history to go to prison, has the head of the Justice Department behaved so abominably. Attorney General Michael Mukasey has chosen to obstruct Congress's subpoenas of executive branch employees despite evidence of criminal wrongdoing. Senators Charles Schumer and Diane Feinstein were the deciding votes that confirmed Mukasey. What were they thinking? Now Mukasey bucks normal procedure and refuses to begin grand jury investigations of Karl Rove's role in transforming the Justice Department into a wholly-owned subsidiary of the Republican National Committee.
Karl Rove is free to "analyze" American politics for us on Fox News, and in the pages of The Wall Street Journal and Newsweek; he appears on discussion panels and charges $40,000 a pop for speaking gigs; he signed a book deal estimated to be worth $8 to $12 million; and now he thumbs his nose at the Congress, defying its subpoenas. It's as if he thinks he's above the law and above his fellow citizens. And to top it off Rove's enabler and co-conspirator is the Attorney General himself.
Mukasey's refusal to do his job shows he is a willing accomplice in undermining the Constitutional powers of the House of Representatives as a co-equal branch of government. Can anyone think of an action more "un-American" than dismantling the "checks and balances" that James Madison and other founders so carefully put in place in 1787?
Palermo added that:
It is fitting that our current Constitutional crisis finds Karl Rove as its centerpiece. No human being has done more damage to our republic in the last hundred years than Karl Rove. He masterminded three of the slimiest, rottenest, most dishonest and divisive elections in American history; elections that brought to power a craven gang of white collar criminals who proceeded to destroy the ability of the government to function (except as a conveyor belt of cash for cronies), lied us into an illegal war in Iraq, collapsed the economy, and made torture and the suspension of habeas corpus synonymous with American "ideals." Karl Rove thinks he can tell Congress to go fuck itself. He must not be allowed to walk away Scot free from his crimes and misdeeds.
... he then went on to suggest Congress hire Dog the Bounty Hunter. Um ... yeah...
Dog aside, the committee can do a number of things, and should probably do them all, sooner rather than later.
They can file a lawsuit against Rove, as was done with Harriet Myers
They can find him in contempt of Congress
And having found him in contempt, they can have the Sergeant at Amrs arrest his roly-poly behind.
If lawmakers fail to do so promptly, the law itself will lose its meaning and Congress will lose what little respect the public has for it. ...
...Rove is now a private citizen. In his role as a political wag, he has said that he never discussed the Siegelman matter with the White House. That makes his assertion of executive privilege all the more ludicrous. Rove has offered to testify by e-mail, or if he can do so not under oath and with no recorded transcript. But it is Congress that makes the rules, not Rove, his lawyer or the president.
Many Americans choose which laws to obey and which to flout. When caught, they can claim all they want that the law doesn't apply to them or plead that their boss told them not to talk. Those people generally wind up behind bars. If he continues to thumb his nose at Congress and the rule of law, that's what should happen to Rove.
John Conyers' House Judiciary Committee finally serves Karl Rove, only he says that his former bosses at the White House still won't let him testify. Who knew presidential prerogatives stretched that far? The bottom line:
Representative John Conyers Jr. of Michigan, the committee chairman, said the subpoena was necessary because Mr. Rove had explicitly declined an invitation to appear voluntarily. Mr. Conyers and fellow committee Democrats say they want to question Mr. Rove about the dismissals of several federal prosecutors and ask whether he knows anything about the decision to prosecute former Gov. Donald E. Siegelman of Alabama, a Democrat.
Mr. Siegelman, who was convicted on a bribery charge, was released from prison in March pending an appeal after an appeals court ruled that he had raised “substantial questions” about his case.
Mr. Rove’s lawyer, Robert D. Luskin, in a letter to Mr. Conyers this week, said the chairman was “provoking a gratuitous confrontation.” Mr. Luskin asserted that Mr. Rove would not appear because he had been directed not to do so by the White House. Although Mr. Rove has left the White House and is now a political commentator, Mr. Luskin said that Mr. Rove “in these matters is not a free agent” and must comply with instructions from the White House not to testify.
Mr. Conyers has argued that Mr. Rove may not himself invoke any privilege on behalf of the White House but that President Bush could do so.
Mr. Rove’s lawyer also noted that the House committee was engaged in a similar conflict with Harriet E. Miers, the former White House counsel, who has also declined to provide voluntary testimony about the dismissals of the federal prosecutors and has defied a subpoena. That issue has landed in federal court, and Mr. Luskin said the Rove matter should await the resolution of that case.
Mr. Conyers, in a letter to Mr. Luskin on Thursday, said that the request to Mr. Rove was wider than the one to Ms. Miers because it also sought information about the Siegelman prosecution.
Several Democrats have asserted that Mr. Siegelman’s prosecution was encouraged for political reasons by Republicans in Washington. Mr. Siegelman served nine months of a seven-year sentence before being released pending an appeal.
Mr. Rove has denied any role in the Siegelman prosecution in comments to journalists, but Mr. Conyers is seeking to put him under oath. The subpoena demands that Mr. Rove appear before the committee on July 10.
Freed Alabama Ex-Governor Sees Politics in His Case
By ADAM NOSSITER
MONTGOMERY, Ala. — Former Governor Don Siegelman of Alabama, released from prison today on bond in a bribery case, said he was as convinced as ever that politics played a leading role in his prosecution.
In a telephone interview shortly after he walked out of a federal prison in Oakdale, La., Mr. Siegelman said there had been “abuse of power” in his case, and repeatedly cited the influence of Karl Rove, the former White House political director.
“His fingerprints are smeared all over the case,” Mr. Siegelman said, a day after a federal appeals court ordered him released on bond and said there were legitimate questions about his case.
Mr. Rove has strenuously denied any involvement in the conviction of the former governor, who was sentenced to serve seven years last June after being convicted in 2006. He could not immediately be reached for comment today.
Mr. Siegelman served nine months while his lawyers appealed a federal judge’s refusal to release him on bond, pending the ex-governor’s appeal of his conviction. That refusal was overturned by the United States Court of Appeals for the 11th Circuit on Thursday.
The former governor, a Democrat, said he would “press” to have Mr. Rove answer questions about his possible involvement in the case before Congress, which has already held a hearing on Mr. Siegelman. On Thursday, the House Judiciary Committee signaled its intention to have Mr. Siegelman testify about the nature of his prosecution.
In June of 2006 he was convicted by a federal jury here of taking $500,000 from Richard M. Scrushy, the former chief executive of the HealthSouth corporation, in exchange for an appointment to the state hospital licensing board. The money was to retire a debt from Mr. Siegelman’s campaign for a state lottery to pay for schools, and the ex-governor’s lawyers have insisted that it was no more than a routine political contribution.
On the telephone outside the prison today, Mr. Siegelman said he had confidence that the federal appeals court, which will now consider his larger appeal, would agree with his view of the case — that he was convicted for a transaction that regularly takes place in American politics.
Otherwise, Mr. Siegelman said, “every governor and every president and every contributor might as well turn themselves in, because it’s going to be open season on them.” ...
Did you catch the scathing "60 Minutes" piece this week about the Bush-Rove Justice Department's political hit job on the Democratic governor of Alabama? It was a dramatic illustration of what the U.S. attorneys firing scandal was all about -- the complete politicization of the justice system, and the firing of any U.S. attorney who wouldn't go along with Karl Rove's strategy of using the criminal courts for "politics by other means." So did you catch it?
Governments that try to keep a firm grip on information flow in their countries, like the Kremlin, have used “technical problems” as an excuse to shut out unwelcome content on the Web and television. But could it have happened in the United States?
A controversy has been brewing on the Web since a “60 Minutes” segment failed to appear on a CBS affiliated TV station in Alabama last night. The report covered a bitter flashpoint between Democrats and the Bush administration: the case of Don Siegelman, a former Democratic governor of Alabama who was jailed for corruption last June.
So hot was the anticipation of the segment in left-leaning circles that one political site published an article, “Bama TIVOs at the ready for ‘60 Minutes’.” But many Alabamans did not see initial broadcast of the report, which included new allegations that Karl Rove, President Bush’s former top adviser, waged a campaign against Mr. Siegelman.
Instead, just before the segment was to start, people in the northern part of the state who were tuned in to WHNT-TV, Channel 19 in Huntsville, found this on their screen instead:
We apologize that you missed the first segment of 60 Minutes tonight featuring ‘The Prosecution of Don Siegelman.’ It was a technical problem with CBS out of New York.
So what gives? More from Nizza:
Upon hearing reports of the missed segment from readers, Scott Horton, a writer blogging at Harper’s, phoned CBS headquarters in New York, which offered him a startling contradiction:
“There is no delicate way to put this: the WHNT claim is not true. There were no transmission difficulties. The problems were peculiar to Channel 19, which had the signal and had functioning transmitters.” I was told that the decision to blacken screens across Northern Alabama “could only have been an editorial call.”
The station later denied that it was an editorial decision, but it also changed its explanation. It was the receiver of the signal in Alabama, not the feed from CBS, that caused the blackout, the network said in a statement.
“We can assure you there was no intent whatsoever to keep anyone from seeing the broadcast,” Stan Pylant, WHNT’s president, told The Huntsville Times.
But the assurance alone seemed unlikely to appease all of his viewers. According to Mr. Pylant, the problem was fixed quickly, resulting in only 12 minutes of down time. But that mostly covered the controversial segment, which lasted about 13 minutes. (”Strange coincidence,” one viewer called it.)
Long story short, the "60 Minutes" piece makes it clear that the Republican White House and its Justice Department pursued and jailed Siegelman because they couldn't defeat him at the ballot box, a view endorsed by more than 50 prosecutors of both parties around the country (those quoted in the CBS piece were Republicans.) Karl Rove should be jailed if he refuses to answer Congressional subpoenas on this issues, and at minimum, the U.S. attorney scandal -- and this prosecution -- should be reviewed by a special prosecutor.
As for the folks running that "news" station in Alabama, I'm sure Vladimir Putin and his successor would have great use for them in Mother Russia.
House Democrats find former White House Counsel Harriet Miers and former Chief of Staff Josh Bolten in contempt of Congress for refusing to testify on the firing of U.S. attorneys for political reasons. But since the attorney general is refusing to enforce the subpoenas or investigate the matter, and it's unlikely the House will exercise it's power to send sergeants at arms to arrest the pair, the contempt finding will have no practical effect.
All the more reason to do it! Action without consequence -- it's the Democratic way!
Just four months later than my prediction, ding-dong, Alberto is finally getting gone.
WACO, Tex., Aug. 27 — Attorney General Alberto R. Gonzales, whose tenure has been marred by controversy and accusations of perjury before Congress, has resigned. A senior administration official said he would announce the decision later this morning in Washington.
Mr. Gonzales, who had rebuffed calls for his resignation, submitted his to President Bush by telephone on Friday, the official said. His decision was not immediately announced, the official added, until after the president invited him and his wife to lunch at his ranch near here.
Mr. Bush has not yet chosen a replacement but will not leave the position open long, the official said, speaking on condition of anonymity because the Attorney General's resignation had not yet been made public. ...
... The official said that the decision was Mr. Gonzales's and that the president accepted it grudgingly. At the same time, the official acknowledged that the turmoil over his tenure as Attorney General had made continuing difficult.
"The unfair treatment that he's been on the receiving end of has been a distraction for the department," the official said.
I'm thinking Gonzo's next move will be to lawyer up, and lawyer up good. There's perjury charges afoot... or at least there should be.
Alberto's resignation comes just a few days after the head of the Justice Department's civil rights division called it quits too, in the wake of the attorneygate scandals that had their roots in attempts at the federal level to punish people who were registering people to vote.
The plot thickens in the ongoing U.S. attorney firings scandal. Now, FBI Director Robert Meuller has weighed in, telling Senators that the NSA's warrantless wiretapping program, the "terrorist surveillance program" or TSP, was indeed the subject of an emergency March 4, 2004 meeting between the White House and the so-called "gang of eight", and of the notorious March 10, 2004 bedside raid on then-A.G. John Ashcroft. The AP reports:
WASHINGTON — FBI Director Robert S. Mueller said Thursday the government's terrorist surveillance program was the topic of a 2004 hospital room dispute between top Bush administration officials, contradicting Attorney General Alberto Gonzales' sworn Senate testimony.
Mueller was not in the hospital room at the time of the dramatic March 10, 2004, confrontation between then-Attorney General John Ashcroft and presidential advisers Andy Card and Gonzales, who was then serving as White House counsel. Mueller told the House Judiciary Committee he arrived shortly after they left, and spoke with the ailing Ashcroft.
The case against Mr. Gonzales is building to a crescendo, and there really are only two ways that it can go -- he will either be forced to resign (in which case he can still be prosecuted for perjury), or the Dems will have to force an impeachment hearing on a president who could stubbornly refuse to let Gonzo go. Gonzo is walking toward the cliff, backward and with a blindfold on.
Senate Judiciary Committee Chairman Patrick J. Leahy threatened yesterday to request a perjury investigation of Attorney General Alberto R. Gonzales, as Democrats said an intelligence official's statement about a classified surveillance program was at odds with Gonzales's sworn testimony.
The latest dispute involving public remarks by Gonzales concerned the topic of a March 10, 2004, White House briefing for members of Congress. Gonzales, in congressional testimony Tuesday, said the purpose of the briefing was to address what he called "intelligence activities" that were the subject of a legal dispute inside the administration.
Gonzales testified that the meeting was not called to discuss a dispute over the National Security Agency's controversial warrantless surveillance program, which he has repeatedly said attracted no serious controversy inside the administration.
But a letter sent to Congress in May 2006 by then-Director of National Intelligence John D. Negroponte described the congressional meeting as a "briefing on the Terrorist Surveillance Program," the name that President Bush has publicly used to describe the warrantless surveillance program.
Democrats pointed to the Negroponte letter yesterday in an effort to portray Gonzales's remarks as misleading. They said Gonzales is trying to conceal the existence of a dispute between White House and Justice Department lawyers that involved the surveillance program, which many Democrats have criticized as an illegal or unjustified abuse of executive-branch authority.
Several Democratic lawmakers, including Senate intelligence committee Chairman John D. Rockefeller IV (D-W.Va.), have also said the meeting focused on the NSA program and have strongly disputed other Gonzales characterizations of the meeting.
Leahy (D-Vt.) told reporters he is giving Gonzales until late next week to revise his testimony about the surveillance program or he will ask Justice Department Inspector General Glenn A. Fine to conduct a perjury inquiry: "I'll ask the inspector general to determine who's telling the truth."
Justice Department spokesman Brian Roehrkasse said yesterday that Gonzales "stands by his testimony," and that "the disagreement . . . was not about the particular intelligence activity that has been publicly described by the president. It was about other highly classified intelligence activities."
DNI spokesman Ross Feinstein referred questions to the Justice Department.
The AP has the smoking gun on Alberto Gonzales' perjury before the Senate Judiciary Committee yesterday.
Remember those idiotic answers Gonzo gave to the committee yesterday regarding his midnight ride to John Ashcroft's bedside, and his claims that the "visit" -- and his briefings to the so-called "gang of eight" in Congress -- had to do with "other surveillance programs" and not the notorious Terrorist Surveillance Program being conducted, illegally, by the NSA? Well, turns out, he was lying:
(AP) Documents indicate eight congressional leaders were briefed about the Bush administration's terrorist surveillance program on the eve of its expiration in 2004, contradicting sworn Senate testimony this week by Attorney General Alberto Gonzales.
The documents, obtained by The Associated Press, come as senators consider whether a perjury investigation should be opened into conflicting accounts about the program and a dramatic March 2004 confrontation leading up to its potentially illegal reauthorization.
A Gonzales spokesman maintained Wednesday that the attorney general stands by his testimony.
At a heated Senate Judiciary Committee hearing Tuesday, Gonzales repeatedly testified that the issue at hand was not about the terrorist surveillance program, which allowed the National Security Agency to eavesdrop on suspects in the United States without receiving court approval.
Instead, Gonzales said, the emergency meetings on March 10, 2004, focused on an intelligence program that he would not describe.
Gonzales, who was then serving as counsel to Bush, testified that the White House Situation Room briefing sought to inform congressional leaders about the pending expiration of the unidentified program and Justice Department objections to renew it. Those objections were led by then-Deputy Attorney General Jim Comey, who questioned the program's legality.
"The dissent related to other intelligence activities," Gonzales testified at Tuesday's hearing. "The dissent was not about the terrorist surveillance program."
"Not the TSP?" responded Sen. Charles E. Schumer, D-N.Y. "Come on. If you say it's about other, that implies not. Now say it or not."
"It was not," Gonzales answered. "It was about other intelligence activities."
A four-page memo from the national intelligence director's office shows that the White House briefing with the eight lawmakers on March 10, 2004, was about the terror surveillance program, or TSP.
Gotcha. So what now, Dems?
A special counsel should and must be empaneled to investigate Mr. Gonzales for perjury. Second, Congress should move to impeach him on the same grounds. If the Democrats refuse, they aren't fit to hold their offices, or to sit in the houses of Congress. It's time to stop bitching about the administration and take some goddammned action.
Update: ThinkProgress has the DNI's smoking gun letter.
Will the Democrats ever develop enough intestinal fortitude to actually put teeth into their disdain for the defiant Bush administration and the criminal, lying, perjurious attorney general?
House Democrats finally passed criminal contempt citations against two top White House officials, former White House counsel Harriet Miers and current White House chief of staff Josh Bolten, the first such finding since an EPA administrator nearly went to jail for contempt in the 1980s, an episode described by former Nixon White House counsel John Dean here (And how ironic is it that Fred Fielding, once counsel to Richard Nixon as well as Ronald Reagan, is the man arguing that the White House can summarily dismiss Congressional subpoenas by writ of executive privilege, and that it can also order the Justice Department not to pursue such cases...):
A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power …."
How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.
Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:
Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."
When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)
The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."
Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.
Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.
Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."
Dean concludes that:
This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.
In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.
In the latest episode, the House Judiciary Committee last week subpoenaed Bolton and Miers to testify about the U.S. attorney firings, and both refused to reply, and in fact, neither showed up for the hearings, setting up the current showdown. According to the AP:
Fielding has offered to make White House officials available for private interviews without a transcript, but Democrats have rejected that.
Conyers subpoenaed Miers and Bolten last month, but neither responded. Miers skipped the hearing to which she had been summoned, infuriating Democrats.
Contempt of Congress would be a federal misdemeanor punishable by up to a $100,000 fine and a one-year prison sentence. If the citation wins support in the full House, it would be forwarded to the U.S. attorney for the District of Columbia — a Bush appointee.
And that's as far as it's likely to go, the Justice Department said in a letter to the committee late Tuesday.
Brian A. Benczkowski, principal deputy assistant attorney general, cited the department's position, "articulated during administrations of both parties, that the criminal contempt of Congress statute does not apply to the president or presidential subordinates who assert executive privilege."
Benczkowski said it also was the department's view that that applies to Miers, who left the White House earlier this year.
So what next? Congress will likely not even take up the contempt issue until after their August recess ... the wussies...
Did you catch Alberto testifying before the Senate Judiciary Committee again yesterday? He put on quite a show of blatant, stammering ignorance. In fact, he apparently has no idea what he has said before, what he's doing as attorney general, or what in god's name to say about it now. Here's Alberto trying to explain his midnight ride to the bedside of then-sidelined A.G. John Ashcroft:
Basically, he's saying that there's no rue against Ashcroft changing his mind about ceding his powers to James Comey while he was gravely ill and under anesthesia ... he could wake up from his delirium and decide to OK warrantless wiretapping ... no problem.
Russ Feingold has called Alberto Gonzales' testimoney outright misleading. Good thing the White House has forbidden the Justice Department to pursue contempt of congress charges against any administration official who has been clothed in executive privelege.
Updates: Jane Harman has weighed in on the NSA domestic spying scandal, saying the White House never sought approval for the program from the so-called "gang of eight" --the top intelligence committee chairs in Congress.
Also, TPM Muckraker reports that Nancy Pelosi has made it clear that she, too voiced objections, as did other members of the gang of eight (Jay Rockefellar and Tom Daschle objected, too.)