By Dan Froomkin
Special to washingtonpost.com
Friday, August 1, 2008; 12:33 PM
How long until former White House political guru Karl Rove is forced to answer to Congress?
Yesterday's landmark judicial opinion rejecting the White House claim that presidential aides are immune from congressional oversight has energized Democratic leaders, who are now demanding that top Bush advisers appear at congressional hearings as early as next month.
But the Bush White House has proved masterful at stalling. And if it succeeds at running out the clock, it may be the next president who must decide whether this one's aides are called to account.
U.S. District Court Judge John D. Bates yesterday ordered Harriet Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, to cooperate with the House Judiciary Committee's investigation into the politicization of the Justice Department, including the mass firings of U.S. attorneys in 2006. Rove has cited the same no-longer-operative excuse to defy congressional subpoenas. (See yesterday's column for more on the court ruling.)
Richard B. Schmitt writes in the Los Angeles Times: "Democrats said Bates' 93-page ruling vindicated their dogged efforts to check potential abuses under Bush, and tentatively set hearings for September. They said they expected White House officials to appear then to answer questions about the controversy over the fired prosecutors, which led to the resignation of Bush confidant and former Atty. Gen. Alberto R. Gonzales last year."
But as Schmitt explains: "Bates left unresolved whether administration officials would be justified in refusing to answer specific questions under the doctrine of executive privilege.
"That question, and an anticipated White House appeal, means the controversy is likely to spill over into the next administration, where it could raise novel legal questions about whether ex-presidents have the power to assert executive privilege after they have left office. Since the subpoenas expire when the 110th Congress goes out of business in January, the incoming chamber would have to reissue them. . . .
"Bates said he hoped that lawyers for the two branches would settle the dispute and avoid further litigation. He scheduled a conference for Aug. 27 to discuss their progress.
"'The practical significance of the opinion will depend chiefly on whether the investigations persist into the next Congress and on how the new administration responds,' said Peter M. Shane, a professor at Ohio State University's law school.
"He said there might be 'interesting questions, yet presented, about the authority of an ex-president to make even qualified executive privilege claims on behalf of his former aides.' But he said that, in general, it is up to the incumbent president to decide, while in office, what is in the best interests of the executive branch as an institution."
Obviously aware that the argument could drag on beyond January, Bates noted in his opinion: "A former President may still assert executive privilege, but the claim necessarily has less force, particularly when the sitting President does not support the claim of privilege."
Del Quentin Wilber writes in The Washington Post: "The Bush administration has increasingly invoked executive privilege in its battles with Congress over documents and testimony related to issues as diverse as greenhouse gas emissions and FBI interviews of Vice President Cheney about the controversial leak of a CIA officer's identity. . . .
"House Speaker Nancy Pelosi (D-Calif.) said the ruling gave Congress a 'road map' by which committees could gain testimony from former West Wing officials, including ex-deputy chief of staff Karl Rove.
"'It was a victory for all who believe in checks and balances. . . . It certainly strengthens our hand,' Pelosi told reporters. . . . "
David Stout writes in the New York Times: "Mr. Bush's chief spokeswoman, Dana Perino, said that the White House was studying the decision. . . . [She] noted that Judge Bates had not ruled on the merits of any specific executive privilege claim and had in fact said that some considerations, like national security, might justify such a claim."
Paul Singer writes for Roll Call (subscription required): "[L]egal experts warned that there are still a number of procedural steps that could prevent any witnesses from appearing prior to the Bush administration's conclusion in January."
But "Democrats said that even with an appeal, it would be possible to force Miers to appear before the election. To prevent her from testifying in September, the Justice Department would have to seek a stay while the appeal moves forward, and the Judiciary Committee could oppose the stay on the ground that other former White House officials have already testified, so Miers' testimony would not harm the White House case.
"Even if this legal process continues through the end of September, when Congress is expected to go on recess, one Judiciary Committee staffer said, 'it is not unprecedented that we could come back for an October session.'"
Senate Judiciary Committee Chairman Patrick Leahy announced in a statement yesterday that he was reasserting his demand for testimony from Rove and Bolten in connection with Senate subpoenas issued in June and July of last year.
Acording to his office: "On Thursday, Leahy sent letters to Rove's attorney, Robert Luskin, and White House Counsel Fred Fielding, instructing them to advise the Committee by August 7 when Rove and Bolten would appear to provide documents and testimony related to the mass firing of U.S. Attorneys. Leahy also sent a letter to Attorney General Michael Mukasey asking when the Department would withdraw memoranda and opinions justifying the White House's non-compliance with the subpoenas."
Leahy also telegraphed that he's interested in hearing testimony about more than the Justice Department. In his letter to Mukasey, he wrote: "[P]lease inform me whether the court's decision will cause you to revaluate your memos and those from [the Office of Legal Counsel] in support of overbroad and unsubstantiated executive privilege claims not only in the U.S. Attorneys investigation, but also in other matters, like the claims used to block Congress from investigating warrantless wiretapping, the leak of the name of undercover CIA agent Valerie Plame for political retribution, and White House interference in the Environmental Protection Agency's decision-making. Which of these do you now intend to withdraw?"
The Washington Post editorial board writes: "Obsessed with stretching the limits of executive power, the administration has time and again engaged in legal battles or unilateral action in defense of warped interpretations of the law. Time and again, it has been rebuffed by conservative and liberal judges alike. The result: The administration has trampled on the rule of law, and the backlash against its actions has whittled away at the foundations of legitimate executive power."
Law professor Marty Lederman blogs: "It bears mentioning that the judge who so ruled is a Republican jurist who worked on the Starr Whitewater team, and who was appointed to the bench by the sitting President Bush. . . .
"When the history of the Bush Administration's executive aggrandizement campaign is finally written, a very large and important part of that story -- a central theme in Jane Mayer's new book, for instance -- is just how many very strongly conservative Republicans resisted the Cheney/Addington/Gonzales/Rove agenda. That includes not only officials within the Executive branch who are very strong defenders of executive prerogatives, such as Jim Comey, Jack Goldsmith, Pat Philbin, Peter Keisler, numerous JAG lawyers, including Alberto Mora and Tom Romig, various Republican U.S. Attorneys who resisted Karl Rove (and paid the price), Will Taft, John Bellinger, etc., but also Republican jurists such as Anthony Kennedy, Sandra Day O'Connor, Michael Luttig, and in recent days Judges Sentelle, Wilkinson, Williams and Bates. Many of these executive and judicial officials did not, of course, hesitate to defend or uphold strong assertions of executive power or statutory construction in many instances -- suffice it to say that I've strongly disagreed with many of them on some such questions. But they -- and apparently many more like them, some of whom remain anonymous -- also all took quite extraordinary steps to reject some of the most extreme views of the Bush/Cheney Administration, to stand in the way of some of the more outrageous things that the Administration has tried to do, and, as in today's decision by Judge Bates, to treat the rule of law with rigor and respect."About Inherent Contempt
In asking the court not to take the case in the first place, administration lawyers argued (see my June 24 column) that the legislative branch had not exhausted its legal options -- specifically suggesting that Congress could have chosen to use its powers of "inherent contempt" and had its own sergeant-at-arms arrest Miers and Bolten.
Bates sided with Congress on this issue as well -- sort of. "[T]he Executive takes the Committee to task for failing to utilize its inherent contempt authority. But there are serious problems presented by the prospect of inherent contempt, not the least of which is that the Executive is attempting to have it both ways on this point," Bates wrote.
In other cases, Bates wrote, this and previous administrations have argued that senior executive-branch officials are -- you guessed it -- immune from inherent contempt. And Bates concurred, writing that "there are strong reasons to doubt the viability of Congress's inherent contempt authority vis-a-vis senior executive officials. . . .
"[I]mprisoning current (and even former) senior presidential advisors and prosecuting them before the House would only exacerbate the acrimony between the two branches and would present a grave risk of precipitating a constitutional crisis. Indeed, one can easily imagine a stand-off between the Sergeant-at-Arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him," Bates wrote.
"[E]ven if the Committee did exercise inherent contempt, the disputed issue would in all likelihood end up before this Court, just by a different vehicle -- a writ of habeas corpus brought by Ms. Miers and Mr. Bolten. In either event there would be judicial resolution of the underlying issue."Was Bush Involved?
Bates also noted -- but didn't express an opinion about -- a central contradiction of the White House position. Namely: How can the White House claim executive privilege regarding a matter that it simultaneously claims the president wasn't involved in?
Bates wrote: "There is some ambiguity over the scope of the President's involvement in the decision to terminate the U.S. Attorneys in this case. The Committee contends that the White House has asserted that the 'President was not involved in any way . . . and that he did not receive advice from his aides about the U.S. Attorneys and he did not make a decision to fire any of them.' . . . That assertion is based on a statement made by Acting White House Press Secretary Dana Perino on March 27, 2007. The Executive, however, now maintains that the Committee 'substantially overstates the record on this point.' . . . As the Executive sees it, the record simply indicates that 'the President was not involved in decisions about who would be asked to resign from the department,' but 'does not reflect that the President had no future involvement' in any capacity. . . . Given the Court's limited decision here, it is unnecessary to address this factual dispute at this time. The Court notes, however, that the degree and nature of the President's involvement may be relevant to the proper executive privilege characterization."Bush's Asian Media Interviews
After a weekend in Kennebunkport, Bush is headed off on Monday for a farewell tour of Asia, visiting South Korea and Thailand before attending the Olympic Games in Beijing. On Wednesday, he sat down for a slew of interviews with Asian journalists.
Dan Eggen wrote in yesterday's Washington Post about the controversy surrounding his decision to include two unusual media outlets: the People's Daily newspaper and the Central China Television network, both controlled by China's ruling Communist Party.
One particular concern was that CCTV could edit the interview into a propaganda vehicle, cutting any comments perceived as critical of the Chinese government.
But the White House transcript of Bush's interview with CCTV's Fuqing Yang was released yesterday afternoon, and it shows Bush being so obsequious that no editing was necessary. Bush didn't say a word about human rights concerns or about Tibet. He made no mention of his meeting on Tuesday with five Chinese dissidents, to whom he promised he would "carry the message of freedom" to the Olympics. (See Wednesday's column.)
Instead, he talked of his respect for Chinese people, his trip to Beijing in 1975 to visit his father, his interest in seeing Yao Ming play basketball, and his excitement about watching the games with his family.
In a roundtable interview with print reporters, Bush spoke glowingly of Chinese President Hu Jintao: "I enjoy the man. I find him to be a straightforward guy, I'm very comfortable in his presence, and we will talk about the kinds of issues we always talk about."
He also spoke at length about his admiration for South Korean women golfers:
Bush: "I'm looking forward to it. You know the thing that amazes me? The South Korean women golfers. (Laughter.) Look at a women's -- have you ever looked at the scoreboard?"
Q. "Yes, sure."
Bush: "It's unbelievable."
Q. "I don't know --"
Bush: "Yes, you're supposed to know. If you look at the scoreboard, it's phenomenal. You talk about an excellent athletic program."Bushism Watch
In an interview with Thai reporter Suthichai Sae-Yoon, Bush was asked what his legacy would be.
Bush: "Oh, I don't know. I'll be dead when they finally figure it out."
Q. "But what do you want history to remember you --"
Bush: "Somebody who took on tough challenges and didn't shy away from doing what he thought was right. And, you know, look, I'm a big believer in freedom and liberty. That's been a hallmark of my agenda. But I -- there's no such thing as short-term history, so I am very confident in telling you that I'll be long gone before somebody finally figures out the true merit and meaning of the Bush administration."
That last part, I suspect a lot of people would agree with.Spy Watch
Joby Warrick writes in The Washington Post: "The Bush administration unveiled new operating guidelines for the nation's intelligence community yesterday in a move that boosted the authority of the Office of the Director of National Intelligence (DNI) while triggering protests from lawmakers who complained that they weren't properly consulted. . . .
"Although the revamped order had been in the works for a year, its formal unveiling prompted a rare revolt from congressional Republicans, some of whom walked out on Director of National Intelligence Mike McConnell during a morning briefing. Rep. Pete Hoekstra (Mich.), ranking Republican on the House intelligence committee, led several GOP colleagues to the exit after complaining that the administration had made the changes secretly without consulting with congressional overseers -- part of a pattern dating to the beginning of the Bush presidency, Hoekstra said."
Scott Shane writes in the New York Times: "The American Civil Liberties Union was also displeased. It maintained that changes in the executive order raised the specter of greater domestic spying, saying new language shifted the focus of the intelligence agencies to American soil. Michael German, national security policy counsel for the A.C.L.U., pointed to the order's references to the agencies' working with 'private sector entities' and said, 'When you have government and private companies operating together in secret, I think that's very problematic.'
"Administration officials, in a briefing for reporters that was given on condition of anonymity, said Congress had in fact been consulted and noted that the revised order included strong language in support of the protection of civil liberties. It also retains prohibitions on assassination and human experimentation that have been in the executive order since it was first issued by President Ronald Reagan in 1981."Iraq Watch
Amit R. Paley writes in The Washington Post: "In a brief statement at the White House early Thursday, President Bush suggested that the decreasing violence in Iraq would allow him to withdraw additional U.S. troops before he leaves office. . . .
"Bush struck a delicate rhetorical balance between asserting his view that sending additional troops to Iraq has been a success and cautioning that withdrawing troops too rapidly could jeopardize security improvements.
"The last of five additional combat brigades sent to Iraq last year left in July, leaving about 140,000 U.S. troops in the country. About 130,000 were in Iraq before the buildup began.
"Starting Friday, Bush said, troop deployments in Iraq will shorten from 15 months to 12. The policy, first announced in April, applies to troops heading to Iraq but not those already stationed there. . . .
"Bush's statement came on the day the U.S. and Iraqi governments had originally set as a deadline for reaching a security agreement governing the future role of U.S. forces in Iraq."
James Gerstenzang writes in the Los Angeles Times: "Bush's remarks, delivered to reporters summoned to the colonnade at the edge of the Rose Garden, offered no assessments that had not already been delivered by military officers and other officials."
Steven Lee Myers and Sabrina Tavernise write in the New York Times: "President Bush said Thursday that increased stability in Iraq would allow the withdrawal of more American forces there, reflecting an emerging consensus at the White House and the Pentagon, though a cautious one, that the war has turned a corner."
But is it an emerging consensus, or is it spin? I wrote in yesterday's column that Bush was kicking off what could be his last major public-relations campaign -- this one to persuade the public that Iraq is finally headed in the right direction and that if things start to go badly again, it won't be his fault.Agreement Watch
Ned Parker and Peter Spiegel write in the Los Angeles Times: "Iraqi officials said Thursday that they were close to finalizing a new security arrangement that would set out the goal of withdrawing all U.S. combat troops from the country, while stopping short of establishing a strict timetable for their departure.
"The pact would outline a conditional time frame for Iraqi troops to take charge of the country and U.S. combat troops to be withdrawn, according to Iraqi officials familiar with the talks.
"The Iraqis said the new arrangement would allow Prime Minister Nouri Maliki to claim that he has enshrined the principle of an American withdrawal, a key demand for a government eager to show independence from Washington while keeping the flexibility to extend the U.S. military presence if security deteriorates.
"As long as the country remains stable, Maliki has said, he sees no need for U.S. combat forces to remain past 2010, roughly matching the timeline for a phased withdrawal proposed by Sen. Barack Obama. The Bush administration and Sen. John McCain have opposed committing to rigid deadlines, though the White House recently acknowledged a willingness to adhere to a 'general time horizon' for Iraqi forces to take full control of security and for the number of U.S. troops to be reduced."Rice Watch
Massimo Calabresi sees the hand of Secretary of State Condoleezza Rice behind "a summer of unexpected shifts in American foreign policy. Washington has dramatically changed course overseas, agreeing to diplomatic concessions it once derided as softheaded and dangerous--including the possibility of a phased withdrawal from Iraq. . . .
"The Administration's move away from saber-rattling is most evident with North Korea and Iran, two charter members of Bush's 'axis of evil' that the Administration had long sought to isolate. . . .
"Such moves signal the latest triumph of realism over ideology -- and a victory for Rice and her diplomatic team over the neoconservatives led by Vice President Dick Cheney. Since Rice took the helm at State in 2005, she has steadily consolidated her authority over foreign policy. If her clout isn't absolute, it is approaching the veto-proof swat that Cheney enjoyed as the secret vicar of national security in 2002 and 2003."Seymour Hersh Watch
Faiz Shakir reports for Thinkprogress.org: "Speaking at the Campus Progress journalism conference earlier this month, Seymour Hersh -- a Pulitzer-Prize winning journalist for The New Yorker -- revealed that Bush administration officials held a meeting recently in the Vice President's office to discuss ways to provoke a war with Iran.
"In Hersh's most recent article, he reports that this meeting occurred in the wake of the overblown incident in the Strait of Hormuz, when a U.S. carrier almost shot at a few small Iranian speedboats. . . .
"During the journalism conference event, I asked Hersh specifically about this meeting and if he could elaborate on what occurred. Hersh explained that, during the meeting in Cheney's office, an idea was considered to dress up Navy Seals as Iranians, put them on fake Iranian speedboats, and shoot at them. This idea, intended to provoke an Iran war, was ultimately rejected."
Kevin Drum blogs for Washington Monthly: "If this story sounds familiar, that's because it is. In one of David Manning's famous memos describing a prewar meeting between George Bush and Tony Blair, he says that Bush admitted that WMD was unlikely to be found in Iraq and then mused on some possible options for justifying a war anyway."
One option attributed to Bush in the memo was flying U2 reconnaissance aircraft with fighter cover over Iraq, painted in U.N. colours, with Bush allegedly arguing: "If Saddam fired on them, he would be in breach."
Notes Drum: "In the end, of course, we didn't do this. We just didn't bother with any pretext at all."Blogging Watch
Alexis Simendinger writes in the National Journal: "The mainstream media's chase for readers, viewers, and advertisers is slowly changing the way some traditional straight-news journalists cover the White House."
She sees signs "that blog writing, verite video, and behind-the-scenes peeks at the presidency -- offered by the same White House reporters who are paid to trail the president for grander purposes -- might morph from sideshow to center ring during the next administration."Cheney Celebrates Rush Limbaugh
From Rush Limbaugh's Web site: "Hello Rush. This is Dick Cheney. I'm a big fan of your show, as you know, and I'm sending good wishes to you as you mark your 20th year on the air. This great achievement testifies to your hard work and to the high standard of excellence that's become your trademark. You are without question one of the great names in broadcasting history. I'm proud to know you, proud to call you a friend, and I look forward to listening for many years to come. Congratulations. Keep up the great work."Cartoon Watch
Tom Toles, John Sherrfius, and RJ Matson on Karl Rove's legacy; Ann Telnaes and Adam Zyglis on Bush's energy policy; Stuart Carlson, Signe Wilkinson and Bill Mitchell on Justice Department hiring.
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