That subpoena from John Conyers seems to be making Karl Rove a little more ... clenched these days. Appearing with the ever-friendly Bill O'Reilly last night, he dismissed the possibility he would even consider appearing for the legal summons:
Rove: I have been directed, again on January 16, by the outgoing president's legal counsel, not to respond to a subpoena, exerting privilege on behalf of the former president and his close aides.
O'Reilly: So you're not even going to show?
Rove: No, and --
O'Reilly: What if they hold you in contempt of Congress?
Rove: Look, this issue is -- let's step back for a minute. This issue of whether or not I should show up -- I've never exerted any personal privilege, I've never said I have a personal right not to show up.
O'Reilly: No, but you're a counselor to the president, it's executive -- I got all that. But let's go beyond the argument. I know your argument. Say Conyers says Mr. Rove is in contempt of Congress. What happens then?
Rove: Well, look, this issue is before the United States Circuit Court of Appeals in the District of Columbia. Rep. Conyers could have waited until they resolved the issue one way or the other, gave guidance to him and gave guidance to the former president and to the current president. But instead, he decided to go forward with this -- I don't know if I want to call it a witch hunt, I don't think of myself as a witch, but I'm certain -- this is a guy who went to the cloak room and said, 'Somebody has to get his --' and then filled in a crude way to describe my posterior. He's sort of like Captain Ahab and I'm the whale.
Well, we know President Obama isn't keen on Conyers proceeding, but this indeed isn't just about petty revenge, as O'Reilly and Rove want to pretend. There are in fact much bigger issues at stake here:
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At issue is whether presidential advisers can be compelled to testify before Congress. Chairman Conyers wants Mr. Rove to appear before his panel to answer questions on the 2006 firings of US attorneys, prosecution of former Alabama Gov. Don Siegelman (D), and “politicization of the Department of Justice.”
The panel also wants the Obama administration to release relevant documents from the Bush administration bearing on these issues.
The legal issues for the new administration are highly controversial, but both the White House and the Democrat-controlled Congress have laid the groundwork for a shift in policy from the Bush administration over executive privilege, which was frequently invoked in the Bush years in clashes with the Congress.
Rove wasn't clear last night whether he will be making a simple claim of executive privilege or will attempt, as he has in the past, to assert an "absolute immunity" that is not only novel but clearly counter to court rulings on the matter. Marcy Wheeler at emptywheel recently explored this in some detail, noting that a simple executive-privilege would seem unlikely to stand up in this case, while the latter claim flies in the face of the Supreme Court rulings establishing the parameters of executive privilege.
After all, the key ruling in this matter, U.S. v. Nixon, is quite clear:
To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III.
Meanwhile, it's also worth noting that Don Siegelman is mightily pleased.