A big question of late is whether Karl Rove will be compelled to testify before Congress on his role in the politicization of the Department of Justice, specifically in the investigation of Don Siegelman. Rove has claimed an expanded version of executive privilege: "absolute immunity" from congressional subpoena.
Today a big decision undercuts Rove's entire argument. U.S. District Court judge John Bates (a Republican appointee, notably) ruled against Harriet Miers and Josh Bolten in their claim of executive privilege. It determines that Bolten and Miers must comply with the subpoenas and appear before Congress.
But the bigger impact may be on Rove. Bates eviscerates Rove's entire justification for ignoring the congressional subpoena, citing that "absolute immunity" has no basis in case law and was rejected in the case of--you guessed it--U.S. v. [Richard] Nixon. emptywheel explains further:
But with respect to Rove, this decision makes it very clear that Rove must show up to testify--and (unless the White House invokes executive privilege with respect to the HJC subpoena of Rove, which they haven't done) he must answer all questions. That's because the sole basis the White House gave to justify Rove blowing off HJC's subpoena was "absolute immunity"--the White House did not invoke executive privilege with regards to this subpoena.
And here's the key line and quote from
Bates' decision:
The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.
In other words, the oversight role and strength of Congress has been vindicated, and now they must apply it. Karl Rove must appear before Congress to testify immediately. He has offered no justification for his absence that stands up to the rule of law. And Miers and Bolten must appear immediately, too.*
Congress goes on recess for the whole month of August. They leave this weekend. I say: let's do the hearings tomorrow. The rush home to raise reelection money can wait a day so that we can restore the rule of law here in our democracy, or so one would hope.
We'll have a statement out soon.
*
UPDATE (or NOTE): I should note that, frankly, this White House has shown itself masterful at stalling tactics to drag out oversight proceedings. I'd expect nothing less this time. But it's all the more important that Congress show some real urgency in holding these hearings, and fast-track any judicial proceedings and hurdles that the White House throws up. Time is short but the institutional impact of an executive branch that abuses its power and defies the Constitution will be long.
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