Tuesday, January 27, 2009

Obama Attorney General Holder A Threat To Carl Rove?

Updated January 28 at 10:58 AM CST

A day after Obama's inauguration Republicans forced at least a one week delay to the scheduled confirmation vote for Eric Holder, President Barack Obama’s nominee for attorney general. Republican opposition towards the nomination of Eric Holder as Attorney General is being driven, it seems, by Karl Rove himself. [HuffPo14 Dec] In December Karl Rove appeared on the Today Show and signaled that Republicans ought to go after Mr. Holder. [Leahy Statement 12 Dec] U.S. Sen. Arlen Specter, the ranking Republican member of the Judiciary Committee, said in December that he intended to slow the confirmation of Eric Holder for attorney general. [UPI 10 Dec]

Why? Because Karl Rove is under threat of prosecution for allegedly manipulating the Justice Department for political reasons.
On Jan. 28 the Senate Judiciary Committee recommended President Obama’s attorney general nominee Eric Holder to the full Senate for consideration by 17-2 vote. Six Republicans approved Holder, with Tom Coburn (R-OK) and John Cornyn (R-TX) as the only “nay” votes.

Sen. Arlen Specter (R-PA) said he would support Holder’s nomination, even though he had expressed reservations about the pick and forced Judiciary Committee to delay the vote by one week.
The Senate Judiciary Committee’s report on the U.S. Attorneys scandal identified Karl Rove's involvement in firings of eight U.S. Attorneys because they allegedly would not bring false charges of voter and election fraud against prominent Democrats. The Justice Department’s Inspector General draws the same conclusion, but notes that it was thwarted from completing its investigation by the refusal of Karl Rove and those who worked for him to cooperate with the probe.

When the House Judiciary Committee of the 110th congress subpoenaed Rove to testify on the U.S. Attorney firings, and his role in the political prosecution of Alabama Governor Don E. Siegelman, Rove ignored multiple subpoenas and he did not testify. Political appointees in President Bush's Justice Department undermined those Congressional subpoenas and fought their enforcement through Bush's exertions of "executive privilege."

Bush's "executive privilege" assertion that anyone who'd ever worked for him was immune from answering questions from Congress, ever, was unprecedented and not supported by any existing case law. In August, the court agreed and ordered that Rove and others indeed must comply with congressional subpoenas. The order was stayed on appeal, but the DC Circuit Court of Appeals never took up the appeal, presumably because the subpoenas at the heart of the case were due to expire on January 3 with the end of the 110th congress.

House Judiciary Committee chairman John Conyers (D-Mich.) had said that he had every intention of reissuing the subpoenas in the new Congress, and this time, President Bush will not be in office to reinforce and back up his claims of executive privilege through his DOJ's lawyers. This is why Republicans (seemingly at Rove's urging) stalled Holder's confirmation on Jan 21st.
On Jan. 26 House Judiciary Committee Chairman John Conyers (D-MI) did indeed reissue the subpoenas former Bush Deputy Chief of Staff Karl Rove about his alleged involved in the political prosecution of an Alabama governor and the firings of nine US Attorneys. The subpoena, approved by an earlier vote of the House, was issued pursuant to "authority granted in H.R. 5 (111th Congress), and calls for Mr. Rove to appear at deposition on Monday, February 2, 2009."

Specifically, it enjoins Rove "to testify regarding his role in the Bush Administration’s politicization of the Department of Justice, including the US Attorney firings and the prosecution of former Alabama Governor Don Siegelman."

Rove's Washington, D.C. lawyer, Robert Luskin, issued a statement published early morning Jan. 27 saying, "It's generally agreed that former presidents retain executive privilege as to matters occurring during their term. We'll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."
While "the privilege belongs to the president who asserts it," President Obama and Attorney General Holder will have to decide whether or not to enforce President Bush's claim of executive privilege should Rove again refuse to testify. The Obama administration could take the side of Bush and Rove to defend the concept of executive privilege, however, it seems unlikely that the Obama Justice Department would take that position.

Rove and former president Bush could still fight new congressional subpoenas in the courts on their own, but what has Rove and Republicans worried is whether or not Holder will direct DOJ attorneys to argue against the "privilege" that Bush invoked to keep Rove out of the witness chair. They have good reason to worry; President Obama signed an Executive Order on Presidential Records at 1:22 pm EST on Wednesday concerning "who gets to assert executive privilege." On signing Obama stated,
"I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.

Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency."
The Executive Order on Presidential Records says that former presidents can claim privilege, but they have no automatic ability to prevent the release of their records if the current administration deems it to be in the national interest. Plus, President Barack Obama is already staffing his Justice Department with some of Bush's fiercest critics, among them lawyers who were fired by President Bush or who felt ethically compelled to quit his administration. “They have alarmingly narrow views of executive power,” said a former Bush aide, who spoke on the condition of anonymity. [Politico]

Clearly, Obama's Freedom of Information and Presidential Records Executive Orders and his initial DOJ staffing with Bush critics worries Rove and Republicans in general. The Senate’s Judiciary Committee was schedule to vote on Eric Holder’s nomination at 2:30 EST of the same day Obama signed the Presidential Records order. Within a half hour of Obama’s executive order, the Republicans, led by Texas Senator John Cornyn and Senator Spector, announced they would block Holder’s confirmation for at least a week and possibly longer.
Rove also could now face additional subpoenas and legal exposure on a number of other incidents—ranging from a Texas money laundering scandal to the Abramoff case. [Paul Alexander 26 Nov]

Cornyn himself may be concerned about here-to-fore "privileged" emails related to the Abramoff Scandal. Some speculate that these emails may mention not only Rove's name, but also Cornyn's name. Before Cornyn became a US Senator, he was a justice on the Supreme Court of Texas. In that role some allege that Cornyn may have had some involvement in Abramoff's scams on Native American Tribes in Texas. [OpEdNews]

Plus, Tom DeLay, Don Young, Karl Rove, Roy Blunt, John Ascroft, Dana Rorhabacher, Jerry Lewis and the countless other Republicans, who have been implicated in the Abramoff Scandal, are still awaiting action from the DOJ. Cornyn may also be worried that Holder will move the Abramoff prosecutions onto the front burner, which, if he was at all involve in the Native American scam, increases the possibility that his involvement would be made public. [dailykos]
Bush's executive privilege claim has blocked Congress and good-government groups seeking to get access to key Bush White House documents that might shed light on a range of subjects, from the level of White House involvement in the US Attorney firings, to the Valerie Plame leak probe, to the decision to invade Iraq to the Abramoff scams.

President Obama's new presidential records executive order combined with his memorandum reviving the Freedom of Information Act will likely make all of Bush's White House documents much more accessible, particularly when requested under subpoenas supported by Obama's Attorney General Holder.

By extension, Obama's executive order and memorandum likely signals that Rove, and others like Miers and Bolten, will no longer be personally shielded by a DOJ fighting to protect executive privilege either. Obama's DOJ, under Attorney General Holder, will likely argue just the opposite - that they are not protected by executive privilege.

This would quickly leave Rove, and others like Miers and Bolten, who ignored subpoenas from the 110th congress with the unpleasant option to appear under subpoena before the 111th congress to claim a fifth amendment right to not testify against themselves on every question asked or sit in jail on a contempt of congress charge. Memos, emails and all other documents authored by Bush Administration officials will likely be readily available upon request for congressional review.

Since the U.S. attorneys were fired allegedly because they would not bring false charges of voter and election fraud against prominent Democrats, Rove could be asked to back up his many claims of rampant voter and election fraud by Democrats, should he appear before congress. This might prove inconvenient timing for Republicans pushing to fight rampant voter fraud with restrictive voter photo id laws in states, like Texas, where they still control the legislature. Inconvenient because every investigation of this issue has found that voter fraud is virtually nonexistent; Rove has no facts to cite to support his claims.

Therefore, the more Rove and his followers can impugn the credibility of Holder and characterize him as a political flunky, the more "political" validity Rove and Republicans in general might find in claiming that attempts to hold him accountable constitutes little more than a witch hunt.

  • Executive order on Presidential Records grants broader public access to the records of previous presidential administrations, reversing restrictions implemented by former President George W. Bush.
  • Memorandum [PDF] calling for new Freedom of Information Act (FOIA) [text] agency guidelines and a presumption of transparency.

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