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Ball In Obama's Court On Rove's US Attorney Testimony
On the question of whether we'll get to the bottom of the Bush White House's role in the US Attorney firings, it's starting to look more and more like the ball is squarely in President Obama's court.
Yesterday, as we noted, House Judiciary chair John Conyers issued a subpoena to Karl Rove, ordering him to testify about the affair February 2nd and declaring ominously: "It's time for him to talk."
(Rove, making a claim to executive privilege backed by President Bush, had defied a subpoena issued by the last Congress. That Congress ended before the full House could vote on contempt charges against Rove.)
And just now, Rove's lawyer, Robert Luskin, told TPMmuckraker that he had already forwarded Conyers' subpoena to the Obama White House, asking them to give an opinion as to whether President Bush retains his ability to assert executive privilege.
In other words, the Obama White House will decide, essentially, whether to back Rove's claim of privilege, or to deny it. (And given that Rove is supposed to appear February 2, that decision from the White House should come soon.) In the latter case, said Luskin, a negotiation would ensue between the Obama White House, President Bush, and Rove. That would likely result in the matter going to court.
That's not the only strand of the effort to uncover information about the firings on which Obama will likely have a major say. Conyers is also seeking testimony on the matter from former White House officials Harriet Miers and Josh Bolten, who, like Rove, are relying on Bush to claim executive privilege. That case is in court, and the Obama White House is scheduled to file an appeal brief February 18th. That brief may make clear whether it backs the privilege claim for Miers and Bolten, and could help determine the case.
Obama's executive order on presidential records, issued last week, suggests that his White House believes that former presidents do not retain their right to assert executive privilege. But that doesn't mean it's a sure thing that Obama won't uphold Rove's claim, and/or Miers and Bolten's. Either way, we should soon find out.













Here’s hoping President Obama does the right thing and waives executive privilege.
January 27, 2009 1:18 PM | Reply | Permalink
Ditto..
maybe he should say something to this effect,
"The rule of law begins in the White House. If I let Karl Rove defy Congress, my own staff might get the wrong idea. I hope none of them ever puts me in this position where I have to defy Congress because they broke the law, but if they do, I won't protect them from justice."
And he could add,
"I think the American People have the right to a full accounting of any administration, including mine. I have always felt that way. With that in mind, I will not in any way inhibit Congress from their Constitutionally appointed duties. If Rove refuses to testify, I will instruct the Department of Justice to compel him to appear."
January 27, 2009 2:57 PM | Reply | Permalink
If I were on Obama's team, I would find a way to ignore Luskin's letter, stating more pressing matters as the reason, ie, 850 billion recovery package being worked on. He should just direct Luskin to the current law which probably states either Rove goes to Congress willfully or has a warrant issued for his arrest.
This really isn't Obama's main problem right now.
January 27, 2009 1:21 PM | Reply | Permalink
This thing with Rove is extremely important. The president of the United States is expected to multitask; he would not be spending 12 hours a day on the stimulus even if Karl Rove weren't such a sleazebag. Anyway, Obama has dozens of lawyers working for him. He doesn't have to stop whatever he's doing and go do a bunch of research on his own. He just has to make the final decision.
January 27, 2009 1:51 PM | Reply | Permalink
I agree with Mike, let this thing go to court and let the chips fall where they may. Make the Congress actually do their job for a change.
January 27, 2009 1:32 PM | Reply | Permalink
I also agree that Obama should play the minimum role necessary. But, he needn't make lame excuses. Obama won't fall for this lawer's political move. They want to set the scene as Obama vs. the prior administration. Obama will direct this to the DOJ and other folks, but he will probably not address this personally at all.
January 27, 2009 3:38 PM | Reply | Permalink
They want to pin down Obama on the question:
Are you for Executive Privilege for yourself after you leave office? Or are you for being vulnerable?
Rove's lia -- er, lawyer -- should properly have told Rove to obey the subpoena. Or, if he wants to pull a scam/delay, send it to the DOJ.
"I have come to the conclusion that one useless man [Rove] is called a disgrace, and that two [Rove and his lawyer] are called a law firm . . . ." -- John Adams.
January 28, 2009 5:25 AM | Reply | Permalink
Is it too much to hope that this scoundrel of a man who has been involved with almost every major scandal of the bush administration, (Plame outing, US Attorney firings, Politicalization of the DoJ, imprisonment of Gov Siegelmann, Disenfranchisement of the Af Am vote come to mind) chould have to face the justice he worked so hard to subvert?
A girl can dream....
January 27, 2009 1:41 PM | Reply | Permalink
Not enough mention of the Siegelman case in the media, either, they keep focusing on the attorney firings, because there's more than one smoking gun already on the table, but the Siegelman mess should become a media-frenzied investigation that Congress could put to a committee or form a grand jury with a special prosecutor, then let it unfold.
It would take a dozen lawmakers a couple hours a week, they could handle it easily along with their other duties.
Anyne who thinks any of us are fooled by that old "we have too many IMPORTANT issues to deal with to waste our time on Rove" doesn't understand what "The Rule of Law" means, and hasn't spent much time reading comments at TPM.
Or they're working for Rove.
Or they ARE Rove...(that you, Karl?)
January 27, 2009 3:23 PM | Reply | Permalink
Actually, it might be a great distraction, keep the MSM busy with Rove's prosecution, while our new President and Congress get some serious work done.
January 27, 2009 3:28 PM | Reply | Permalink
Why in the world should the Obama administration be asked to or required to offer an "opinion" on something like this. MAYBE if the Reps in Congress had seen fit to get the nation an Attorney General, a question could be asked about the governments likely position if the issue made it to the Courts ....... but Obama's opinion counts little more than yours or mine as to whether the courts will require Rove to comply. It's just a gimmick to put Obama in an uncomfortable spot, and I HOPE the White House just says "huh? what are you asking us for?" If and when there is a subpoena for information/testimony regarding Obama's own administration, that's soon enough for them to map out their position(s) on executive privilege.
Sorry, Karl -- hate to break it to you, but the world doesn't revolve around you.
January 27, 2009 1:52 PM | Reply | Permalink
"Why in the world should the Obama administration be asked to or required to offer an "opinion" on something like this."
...that was my first thought, too.
Desperation is the mother of manuevering?
January 27, 2009 2:59 PM | Reply | Permalink
They're calling Obama out, early times yet, but they're calling him. Not too surprising that they're calling out that he's the bottom rung and they're on the top.
Callin' you out, BO and your administration.
And your answer would be........?
January 27, 2009 1:53 PM | Reply | Permalink
I hope that Obama sticks it to Rove.
That would make my day!
January 27, 2009 1:57 PM | Reply | Permalink
What did I tell you? I knew that Rove would politicize this and the republicans will cry "Witch Hunt!"
January 27, 2009 2:00 PM | Reply | Permalink
The ball is in the Senate's court, not Obama's. The only question to be answered by the Executive Branch is does Executive Privilege have the same attributes as a Presidential Pardon - once given its a get-out-of-jail card. I would think the OLC would be the people making this determination. I'm wondering how Dawn Johnsen will answer it.
January 27, 2009 2:21 PM | Reply | Permalink
With all due respect to the people who have commented before me, I think folks are missing the subtle intelligence of this particular tactic that Rove is taking.
This is an implied threat.
By leaving it in Obama's hands to decide whether or not executive privilege can be invoked after a particular president leaves office, Rove is essentially saying "If you subpoena me now, you better damned well expect that my guys are going to retaliate on pretty much anything we can think up when YOU leave office."
This is a really smart, if underhanded, tactic Rove is using. If Obama insists that Rove comply, then he can expect all of his top aides to be brought in on the most random crap imaginable eventually. If Obama is smart enough to recognize that trap (and he probably is) and asserts the opinion that privilege doesn't expire when a president leaves office then it leaves Conyers twisting in the wind and sets up a pissing match between a new president and a key congressional ally.
January 27, 2009 2:46 PM | Reply | Permalink
But why does Obama have to say anything? This is between Congress and Rove. I can understand that Rove wants to set a trap, but the White House doesn't have to walk into it, does it? What's wrong with a response like "This is a matter between you and Congress and should be resolved by mutual agreement or the Courts." Maybe add "If the matter reaches the courts, it's possible that the Attorney General may have a position on the matter and seek to be heard, but that isn't the situation that's presented now."
Maybe I'm missing something, but I can't see that Obama is obliged to say anything. It seems to me Rove just wants to make trouble (AND buy time).
January 27, 2009 2:59 PM | Reply | Permalink
If I could channel my inner Kwisatz Haderach from the Dune movies: "The first step in evading a trap is knowing of the trap's existence."
I agree with you Elizabeth that there are any number of ways that Obama could subtly Judo this particular issue.
In fact, given the way he handled some folks in his campaign - like the way he turned Bill Clinton into a red faced rampager in South Carolina with his reference to Reagan being the last "transformational" president pressing Bill's buttons - I would expect and hope that Obama would come up with a way to get Rove's fat butt in front of Congress to testify without exposing his people to possible retribution later.
It will be interesting to see how Obama plays this. Having watched him operate the last couple of years, he seems to have a distinct fondness for "slow playing" his cards if I can borrow from poker terminology. He has a tendency to let his opponents overreach, and only THEN hits back. In this way he avoids looking like the partisan in the eyes of the media/public with issues like this.
I wonder if he'll try a tactic similar to that in both his discussions of the stimulus bill and this Rove issue. Let the Republicans, who tend to have bully tendencies, grow more and more confident and make increasingly large "bets" into the pot before acting.
January 27, 2009 3:08 PM | Reply | Permalink
You seem quite certain that there will still be a viable Republican Party in 8 years.
They won't be gone completely, but I would proignosticate that they will suffer the same fate as the Whigs did around the Civil War era.
Independents and fringe parties might just outnumber Republicans in 8 years. They sure aren't gasthering in hordes of new members these days, and considering their bitter, very recent legacy, it is very hard to see them finding public redemption, no matter what happens uring Obama's administration.
If you want to know what kind of threat Rove would like to exude, think "Mike Connell."
January 27, 2009 3:35 PM | Reply | Permalink
Don't count your chickens yet. 45% of voting Americans voted for McCain, which still amazes me. The Republican's aren't going anywhere, and the Dem's downfall will come soon if they share your overconfidence.
January 27, 2009 3:46 PM | Reply | Permalink
I don't buy it. That implied threat exists no matter what. If Obama was so worried about that his first executive order would not have been to open up documents that Bush was trying to keep secret. It's not like the implications of that never occurred to him.
January 27, 2009 3:03 PM | Reply | Permalink
Smart? It's yet another, "I don't give a fuck about this country" move.
Obama should simply send it back to Rove's lawyer with an, "I can't comment on an ongoing investigation."
January 28, 2009 5:31 AM | Reply | Permalink
a)Obama compels Rove to testify - oh no! Now the Repubs are MAD! watchout Dems!
b)Obama tells Rove that his underlings were overzealous, and a man of Rove's stature and integrity would never have to lower himself to complying with the law. Now the Rebubs smell fear, as the newly installed leadership of the free world cannot bear to face the wrath of Repub thugs. Watch for Repub campaign slogans calling Dems wimps.
Ya really, like the repubs will take it easy on Dems if they spare Rove. that's a laugh.
January 27, 2009 3:03 PM | Reply | Permalink
The ball is in the hands of the leadership of the Democratic House and Senate majorities. Republicans in the House and Senate are holding our country's economic welfare hostage trying to force Obama into giving the Bush administration a free pass on their criminal actions if Obama wants their support for his economic policies. They are playing hard ball politics implying that they will take our country down before they give in. If Democratic leaders are willing to play the same game with Obama, they can force Obama to go after Bushies and still insure that Obama's policies get the votes to pass. Of course Obama would like bi-partisan political support, but Republicans are saying they'd rather take our country down than provide it. Democrats are in the position to provide accountability and justice as well as the votes to get Obama's policies passed. But in order to force Obama's hand, they have to be willing to tell Obama that he needs their majority support much more than the unnecessary luxury of minority Republican support, and if he wants it, he has to allow them to fully investigate and prosecute the crooks in the Bush administration. The only real change that will take place in the Republican Party will be the result of attrition. The common good is not politically advantageous to those who seek the power to maintain their positions of economic superiority and control over people they see as inferior beings. Accommodation is not in their nature.
January 27, 2009 3:19 PM | Reply | Permalink
"The ball is in the hands of the leadership of the Democratic House and Senate majorities. "
That's depressing.
January 27, 2009 3:48 PM | Reply | Permalink
Except that Obama doesn't atually need the Republicans to pass the stimulus. He's simply showing that he is for bipartisanship [even though he doesn't need to do so] -- that he's a nice guy. We the people will like him, and what he's doing. That will backfire against the Republicans.
On Rove: he should send the subpoena back to Rove's lawyer with an, "I can't comment on an ongoing investigation."
January 28, 2009 5:36 AM | Reply | Permalink
Frogmarch to Botany Bay for fat fucker Rove. Karma can't come up with a big enough boomerang for that bastard.
January 27, 2009 3:31 PM | Reply | Permalink
almost poetic...
January 27, 2009 3:42 PM | Reply | Permalink
Even more than seeing him punished, I would just love for Rove topuff up with arrogant indignation and say something akin to "You can't handle the truth.."
January 27, 2009 3:41 PM | Reply | Permalink
Which brings to the front of my tin-foil damaged brain the thought that while he couldn't act as the prosecutor in the attorney firing case, David Iglesias could sure be the prosecutor in the Siegelman case.
Dave's dealt with "you can't handle the truth" testimony before, doncha know...
And if they tried to get him disqualified because Rove got him fired, then they are admitting Rove got him fired.
KARL "CATCH 22" ROVE!!!
January 27, 2009 3:59 PM | Reply | Permalink
The one thing Obama really mustn't do is simply support Bush's expansion of executive privilege without getting the courts involved. The Bush administrations end run around the rule of law and court's role as arbiter in that needs to end, not be reinforced.
I could see Obama stepping aside and saying fight it out in court, it's Bush's claim not mine. The last person the new White House needs to negotiate anything with is George Bush.
January 27, 2009 3:45 PM | Reply | Permalink
Obama shouldn't mention the courts: Roberts and Alito (and therefore Thomas) believe in the "Unitary Executive," which is the card Rove is playing.
Obama should send the subpoena back to Rove's lawyer with an, "I can't comment on an ongoing investigation." And when the media ask him about it, he should point out that the issue is between Rove and Congress; that his administration has no part in it; and add that the court has already held against Rove.
January 28, 2009 5:41 AM | Reply | Permalink
seriously, how can the dems let the repubs get away with throwing a governor in jail? if they let the repubs walk from that, next thing is they'll try and get Obama behind bars. think that's far fetched? look what they did to clinton. look what they did to iraq. look what they do to america every single day.
January 27, 2009 3:49 PM | Reply | Permalink
Two possibilities:
One, Obama does nothing. Why should he respond to a claim of privilege made by a former employee of a previous administration? That's like my wife's first husband asserting MY marital privilege (not his) over conversations he had with the ex prior our present marriage. Not gonna fly. It's neither mine to give or his to invoke.
Second possibility, Obama points to the EO regarding privilege of ex-presidents' documents, and says Rove's gotta talk, since the Obama administration doesn't think Rove's - or Miers', or Gonzo's - claims of privilege any longer apply.
Rove and the rethugs may think it's a trap, and they certainly intend it to be, but what I think they don't get is that Obama, et. al. don't give a squirt, since they have no intention of hiding behind such BS maneuvers anyway.
January 27, 2009 3:59 PM | Reply | Permalink
Am I the only one to find this patently ridiculous?
First of all, the courts have ruled consistently that executive privelege is to be given the greatest deference in matters of national security. Political shenanigans at the DoJ do not remotely qualify as matters of national security.
Second, are not the questions Rove would be asked relevant? I've been following the U.S. attorneys matter pretty closely, and it seems that most of the action went on between Rove's political shop and the high officials at Justice. Merely because he worked in the executive branch does not give Rove the right to invoke executive privelege. He was the executive of nothing. He was a political adviser to the president, without Constitutional duties. The privelege is meant for communications between the President and his advisers, in order to encourage honest advice. Is Rove's assertion of the privelege simply audacious, or is it a clue that Bush actually was involved in the act of firing the prosecutors, as he and his staff have denied? It would seem that if the President was not involved, he can't claim executive privelege. I should add I'm not a lawyer, but I know what makes sense.
What a pair on this guy. Maybe I'm a reckless young man and maybe I would regret it when the Republicans retake control of Congress in 2050, but I think it's time to give the Sargeant-at-Arms something to do.
January 27, 2009 4:02 PM | Reply | Permalink
You raise an interesting point. The most oft-cited rationale for exec. privilege is that the President needs unvarnished advice. One could argue that, by the very act of asserting executive privilege, Rove is implying that he discussed all this stuff with Preznit Butch.
January 27, 2009 4:09 PM | Reply | Permalink
Obama should play as little a role in this as possible. He should let this be a congressional matter, period.
January 27, 2009 4:10 PM | Reply | Permalink
Exactrly. He should have a lawyer send it back to Rove's lawyer, unremarked upon, and give an, "I can't comment on ongoing Congressional investigations."
January 28, 2009 5:46 AM | Reply | Permalink
Please don't let Obama claim "that's all in the past and American's don't care about that." ALL crimes are in the past, O.J. wasn't jailed for the next time he threatened someone with a gun. And yes we do care about this.
January 27, 2009 5:13 PM | Reply | Permalink
On a side note, wouldn't it be funny to see Rove smiling and waving as he walked into Congress to testify and watch reactions from Republicans as he walks over to shake their hands?
January 27, 2009 5:18 PM | Reply | Permalink
Where's the outrage on this?
Here's the only Kos diary on the subject all day.
http://www.dailykos.com/story/2009/1/27/171814/933/851/689686
Not even on the Recommended list.
Let's make some noise before it's too late.
http://www.whitehouse.gov
January 27, 2009 6:13 PM | Reply | Permalink
WWDD?
What Would Dennis Do?
January 27, 2009 9:14 PM | Reply | Permalink
From where does Rove's lawyer get the authority to demand a legal opinion from Obama ?
This stunt should be ignored. There is no grounds for 'negotiation' between the current administration and the former president.
The Republicans were thrown out of office but they act like they still decide everything.
Nonsense - ignore it.
January 27, 2009 10:51 PM | Reply | Permalink
I thought that Obama just decided that presidents - including himself - can't just arbitrarily decide matters of 'executive priviledge.' That it's a legal matter for the attorney general to decide - ie Eric Holder. Maybe it was a bad idea for Rove to launch his campaign against Holder's confirmation?
I don't see how "this is squarely in Obama's court" - just because Rove's lawyer wants to pretend that it is If Rove chooses to ignore the subpoena, Conyers refers the matter to the new attorney general for prosecution. That's the way it works, and I don't see any need for Obama to get directly involved in the process at this stage.
Rove needs to do a lot more twisting in the wind before we break open the big fat pinata and watch the goodies fall out.
January 28, 2009 2:05 AM | Reply | Permalink
Why is it in Obama's "court"? Why would the executive have a say in whether or not a Congressional subpoena should be enforced?
January 28, 2009 8:04 AM | Reply | Permalink
When Rove goes away and meets his new best friend, "Spike," it's going to give a whole new meaning to the nickname, "Turd Blossom!"
January 28, 2009 8:28 AM | Reply | Permalink
Rove will have to subpoena; this is just a stunt! Allen McDuffee puts Rove in his place.
http://www.governmentalityblog.com/my_weblog/2009/01/whos-going-to-save-rove-now-.html
January 28, 2009 8:30 AM | Reply | Permalink