Karl Rove has chosen to ignore a subpoena to testify before the House Judiciary Committee in relation to allegations he was part of an administration campaign against officials who did carry out a partisan agenda. By not appearing to testify under subpoena, he has opened himself up to charges of contempt of Congress, and the committee’s chairman, Rep. John Conyers (D-MI) has threatened to prosecute Rove if he does not comply, as has Rep. Linda Sanchez (D-CA), chairwoman of the subcommittee on commercial and administrative law.
Rove’s attorney, Robert Luskin, claims the former Bush political adviser is “immune” from the subpoena because the accusations relate to a position he held which Luskin argues is covered entirely by “executive privilege”. House Democrats have said this argument not only flies in the face of law and judicial precedent, but is perilously close to arguing that all executive activities are immune from oversight or prosecution (despite Constitutional provisions for both) as a result of executive privilege.
Rep. Conyers said of Rove’s failure to testify: “A refusal to appear in violation of the subpoena could subject Mr. Rove to contempt proceedings, including statutory contempt under federal law and proceedings under the inherent contempt authority of the House of Representatives.” Rep. Sanchez noted that “The courts have made clear that no one —not even the president— is immune from compulsory process. That is what the Supreme Court rules in U.S. v. Nixon and Clinton v. Jones.”
The chairman of the Judiciary Committee has also noted that Rove has repeatedly made appearances on cable news broadcasts, including as a paid consultant, and commented on the very issues he refuses to speak about under oath. The fact that he had commented on the issues would, under legal provisions covering actual privilege —such as that between patient and analyst, client and lawyer or among spouses—, negate any claim to privilege on the issue in question.
This fact could work against Mr. Rove if legal proceedings are initiated in an attempt to force him to testify, despite unprecedented efforts by the Bush administration, at times with success, to establish precedent cordoning off nearly all executive consultations from Congressional oversight under the guise of executive privilege or state secrets (itself a principle of British law designed to protect the monarchy).
It remains unclear, however, what action may be taken to force Mr. Rove to testify. If he were to appear before the Congressional committee, he could claim recourse the 5th Amendment to the US Constitution, which guarantees the individual the right not to testify against himself, i.e. not to be forced into admitting wrongdoing. The Judiciary Committee may gather evidence from other witnesses and through document subpoenas, and may also request the Justice Department turn over evidence from related investigations, in order to establish a case against Mr. Rove, then call for his prosecution on evidentiary grounds.
CNN reports that:
Rove’s lawyer cited a letter from the Justice Department saying Rove is “constitutionally immune from compelled congressional testimony.” He said Rove is willing to submit to an “informal interview” or to answer written questions about the prosecution of former Alabama Gov. Don Siegelman, whose ouster Rove is accused of orchestrating.
“Threatening Mr. Rove with sanctions will not in any way expedite the resolution of the issue,” Luskin wrote in a letter to the panel on Wednesday.
Luskin argues that Congress cannot force Rove to testify and that courts will uphold his recourse to executive privilege as a form of blanket immunity from such subpoenas. Rep. Conyers has noted that in the past, acting and former White House officials have testified about activities related to their work in the executive branch, dealing with privilege issue by issue, as questions are put to them; Mr. Rove could follow this course, give testimony and in isolated matters, claim either privilege or 5th Amendment protection, as advised by counsel.