Leahy Presses Rove, Bolten To Testify
After Court Rules Against Immunity For White House Officials

 

WASHINGTON (Thursday, July 31, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Thursday pressed for testimony from former White House Deputy Chief of Staff Karl Rove and White House Chief of Staff Joshua Bolten in connection with subpoenas issued by the Committee in June 2007 and July 2007.  A ruling today by District Court Judge John Bates rejected President Bush’s claim that senior White House officials are not required to comply with congressional subpoenas.

 

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 Botlen 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. 

 

“I will be sending letters to Karl Rove’s lawyer and the White House counsel to schedule Mr. Rove and Mr. Bolten’s long overdue appearances before the Senate Judiciary Committee,” Leahy said in a statement on the Senate floor Thursday.  “The White House’s response to the Senate Judiciary Committee’s subpoenas has been to assert blanket claims of executive privilege and novel claims of absolute immunity to block current and former officials from complying.  Based on these claims, neither Mr. Rove nor Mr. Bolten even appeared before the Committee to respond to the subpoenas.  Now, a court has said that they must.”

 

The Judiciary Committee last year authorized Leahy to issue subpoenas to Rove and Bolten.  Both failed to comply with the subpoenas, citing a presidential claim of executive privilege.  The White House has argued that presidential advisors are immune from subpoenas issued by Congress.  In November, Leahy ruled the White House’s claims of executive privilege and immunity to be invalid, paving the way for the Judiciary Committee to report contempt citations for Rove and Bolten in December.

 

“The effects of the White House’s assertions of privilege and immunity have been unmistakable — amounting to the withholding of critical evidence related to the congressional investigation,” Leahy continued.  “And all along they have contended that their blanket claim of privilege cannot be tested but must be accepted by the Congress as the last word.  Today’s ruling from Judge Bates is a resounding rejection of this White House attempt to thwart accountability and a reaffirmation of Congress’s ability to conduct oversight and the right of the American people to learn the truth about their government.”

 

The ruling comes in a case filed by the House Judiciary Committee, which has been conducting a parallel investigation of the hiring and firing practices at the Department of Justice.  In June 2007, the House Judiciary Committee issued subpoenas for Bolten and then-White House Counsel Harriet Miers.  The House adopted resolutions of contempt in February, and filed its case in the D.C. District Court March 10, 2008.

 

The full text of Leahy’s prepared remarks follow.  The text of Leahy’s letters to Luskin, Fielding, and Mukasey follow.  PDFs are also available online.

 

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Letter to Robert D. Luskin, Attorney to Karl Rove

Letter to Fred Fielding, Counsel to the President

Letter to Attorney General Michael Mukasey

 

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Statement Of Sen. Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On The Court’s Rejection Of Administration’s Claims Of

Immunity From Congressional Subpoena

July 31, 2008

 

Today’s ruling by the Federal court evaluating the contempt charges against former White House Counsel Harriet Miers is a rejection of the administration’s unprecedented and unfounded blanket claims of executive privilege and immunity.  This ruling is a rebuke of the White House’s arrogant cover up, which is designed to shield from public view the inappropriate and illegal actions of this administration.  It is also a reaffirmation of the principles of separate, co-equal branches that have guided our Republic since its inception despite the best efforts of this administration to accrue unchecked executive power.

 

I commend Judge Bates, himself a former prosecutor who was appointed by President Bush, and Speaker Pelosi and Chairman Conyers for their steadfastness in pressing this matter.

 

I have long pointed out that this administration’s claims of executive privilege and immunity, which White House officials have used to justify refusing to even show up when served with congressional subpoenas, are wrong.  Last November, I issued a ruling that the White House’s privilege and immunity claims not legally valid to excuse Karl Rove and White House Chief of Staff Josh Bolten from appearing, testifying and producing documents related to the Judiciary’s Committee’s investigation into the unprecedented firing of U.S. Attorneys.  Mr. Rove and Mr. Bolten’s continued non-compliance with the Committee’s subpoenas even after my ruling led us to hold them in contempt of Congress.  Still they have not appeared to testify.

 

This week the House Judiciary Committee also cited Mr. Rove for contempt.  They had previously cited Ms. Miers for her failure to appear, as well as Mr. Bolten.

 

It is past time for senior administration officials to abide by the law and appear before Congress to offer testimony compelled by subpoena.  The ruling by Judge Bates could not have been more plain.  He wrote: “[T]he Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”  I will be sending letters to Karl Rove’s lawyer and the White House counsel to schedule Mr. Rove and Mr. Bolten’s long overdue appearances before the Senate Judiciary Committee.

 

Moreover, Judge Bates explained why the Bush-Cheney administration’s blanket immunity claims were an unjustified encroachment on the constitutional powers of Congress.  He wrote: “[I]f the Executive’s absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege.”  The result, which the court concluded was “unacceptable,” would be that the “Executive’s proposed absolute immunity would thus deprive Congress of even non-privilege information.”

 

Despite the administration’s attempts at every turn to short-circuit Congress and even the courts from being able to evaluate their privilege claims, Judge Bates’ concurrence in these principles is a significant milestone.  I will be sending a letter today to Attorney General Mukasey asking when he intends to withdraw the erroneous Office of Legal Counsel opinion from Stephen Bradbury relied upon by the White House to justify its non-compliance with congressional subpoenas since that opinion has been repudiated by the court.  In addition, I intend to ask him whether the court’s decision will cause him to reevaluate his memos in support of overbroad and unsubstantiated executive privilege claims not only in the U.S. Attorney 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.  

 

The court’s decision today undercuts the White House’s blanket claims in all of these matters.  Judge Bates wrote that “clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege.”  That is why we have asked for over a year for the White House to provide us with the specific legal and factual basis for its privilege claims.  We must be able to probe the basis for those claims and their validity ourselves rather than on the say-so of the President’s lawyers.  The court was explicit that “both the Court and the parties will need some way to evaluate the privilege assertions going forward.”

 

Indeed, we need to be able to assess the basis for any executive privilege claim at all in light of the significant and uncontroverted evidence that the President had no involvement in the U.S. Attorney firings. 

 

I have asked and I continue to ask whether the White House’s continued assertion of the executive privilege in this matter means the President takes responsibility for the decisions to fire the well-performing prosecutors.  To date, after more than a year and a half, he has not done so, instead seeking to have it both ways— “mistakes were made” by others, yet somehow executive privilege still applies.

 

The White House’s other blanket assertion is that there was no wrongdoing in the firings.  We have asked for the basis for this assertion.  None has been provided.  If the White House has information that led the President and others to discount the evidence of wrongdoing the investigating Committees have gathered so far, then it should be produced.  Otherwise, we must conclude that they do not have it and it does not exist.

 

To the contrary, the Judiciary Committees’ investigations, which led to the resignation of the Attorney General, the entire senior leadership of the Justice Department and several high-ranking White House political officials, has uncovered grave threats to the independence of law enforcement from political manipulation.  The evidence we have shows that the list for firings was compiled based on input from the highest political ranks in the White House, including Karl Rove.  The evidence shows that senior officials were apparently focused on the political impact of Federal prosecutions and whether Federal prosecutors were doing enough to bring partisan voter fraud and corruption cases.  It has long been apparent that the reasons given for these firings were contrived as part of a cover up.

 

The tragic and corrupt politicization of Federal law enforcement by this administration is wrong.  Reports released by the Justice Department’s Inspector General and Office of Professional Responsibility, the latest just this week, have shown the reach of the political operatives of this administration, infecting the hiring for career prosecutors and immigration judges with improper and illegal political loyalty tests designed to embed “loyal Bushies” throughout the Department.  So far, neither the Justice Department nor the White House has taken responsibility.  Apparently, the White House intends its excuses that “mistakes were made” and that there were just a “few bad apples” to suffice.   What we have uncovered is a widespread effort described by the Department’s own Inspector General as “systemic”, one that that involved the highest ranking office holders at the Justice Department funneling White House loyalists into career positions.   

 

The White House’s response to the Senate Judiciary Committee’s subpoenas has been to assert blanket claims of executive privilege and novel claims of absolute immunity to block current and former officials from complying.  Based on these claims, neither Mr. Rove nor Mr. Bolten even appeared before the Committee to respond to the subpoenas.  Now, a court has said that they must.

 

The effects of the White House’s assertions of privilege and immunity have been unmistakable—amounting to the withholding of critical evidence related to the congressional investigation.  And all along they have contended that their blanket claim of privilege cannot be tested but must be accepted by the Congress as the last word.  Today’s ruling from Judge Bates is a resounding rejection of this White House attempt to thwart accountability and a reaffirmation of Congress’s ability to conduct oversight and the right of the American people to learn the truth about their government. 

 

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Letter to Robert D. Luskin, Attorney to Karl Rove

 

July 31, 2008

 

Mr. Robert D. Luskin

Patton Boggs LLP

2550 M Street, NW
Washington, DC 20037

 

Dear Mr. Luskin:

 

Today, the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas.  The court’s decision also reaffirmed the President’s burden to provide the specific basis for any executive privilege assertions sufficient to give Congress a means to evaluate those assertions.  The administration has not provided that basis despite my requests to do so for more than a year.  For your convenience, I attach a copy of the court’s opinion. 

 

Your client, Karl Rove, failed to appear and testify before the Senate Judiciary Committee last August 2 in response to a subpoena I issued July 26, 2007, as part of the Committee’s investigation into the firing of U.S. Attorneys.  It is my understanding that Mr. Rove’s failure to comply was based on an August 1, 2007, letter from White House Counsel Fred Fielding informing the Committee that the President would invoke a blanket claim of executive privilege to direct Mr. Rove not to produce responsive documents or testify before the Committee, and citing a memo from the Department of Justice’s Office of Legal Counsel to assert that Mr. Rove was “immune from compelled congressional testimony” as an “immediate presidential advisor.”  Today’s decision renders these grounds for Mr. Rove’s refusal to appear and testify moot.

 

Please advise me by next Thursday, August 7, when Mr. Rove will comply with the Committee’s subpoena by appearing and testifying before the Committee.  I attach for your reference copies of my ruling of November 29, 2007, that the White House’s executive privilege and immunity claims are not legally valid to excuse Mr. Rove from testifying and producing documents, and the Committee’s bipartisan resolution of December 13, 2007, finding Mr. Rove in criminal contempt of Congress.

 

Sincerely,

 

 

PATRICK LEAHY                                                      

Chairman                                                                     

 

 

cc:  The Honorable Arlen Specter 

Enclosures

 

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Letter to Fred Fielding, Counsel to the President

 

July 31, 2008

 

Fred Fielding, Esq.

Counsel to the President

The White House

1600 Pennsylvania Avenue, N.W.

Washington, D.C. 20500

 

Dear Mr. Fielding:

 

Today the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas.  The court’s decision also reaffirmed the President’s burden to provide the specific basis for any executive privilege assertions sufficient to give Congress a means to evaluate those assertions.  You have not provided that basis despite my requests to do so for more than a year.  For your convenience, I attach a copy of the court’s opinion. 

 

White House Chief of Staff Joshua Bolten failed to appear before the Senate Judiciary Committee to testify and produce documents on June 28, 2007, in response to a subpoena I issued two weeks earlier, on June 13, as part of the Committee's investigation into the firing of U.S. Attorneys.   It is my understanding that Mr. Bolten’s failure to comply was based on a June 28, 2007, letter from you informing the Committee that the President would invoke a blanket claim of executive privilege to refuse to turn over any documents compelled by subpoenas issued by the Judiciary Committees of both houses of Congress. 

 

In addition, your letter of August 1, 2007, was the basis for Karl Rove’s failure to appear and testify before the Senate Judiciary Committee last August 2 in response to a subpoena I issued July 26, 2007 as part of the same investigation.  That letter cited a memo from the Department of Justice’s Office of Legal Counsel to assert that Mr. Rove was “immune from compelled congressional testimony” as an “immediate presidential advisor.” 

 

Today’s decision renders the grounds for Mr. Bolten and Mr. Rove’s refusal to comply with the Committee’s subpoenas moot.

 

Please advise me by next Thursday, August 7, when Mr. Bolten will comply with the Committee’s subpoena by appearing, testifying and producing documents.  Please also advise me when you will be rescinding your August 1 letter regarding the subpoena to Mr. Rove. 

 

I attach for your reference copies of my ruling of November 29, 2007, that the White House’s executive privilege and immunity claims are not legally valid to excuse Mr. Bolten and Mr. Rove from testifying and producing documents, and the Committee’s bipartisan resolution of December 13, 2007, finding Mr. Bolten and Mr. Rove in criminal contempt of Congress.

 

Sincerely,

 

 

PATRICK LEAHY                                                    

Chairman                                                                    

 

 

cc:  The Honorable Arlen Specter 

Enclosures

 

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Letter to Attorney General Michael Mukasey

 

July 31, 2008

 

The Honorable Michael B. Mukasey

Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

 

Dear Attorney General Mukasey:

 

Today, the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas.  The court’s decision also reaffirmed the President’s obligation to provide the specific basis for any executive privilege assertions to provide Congress a means to evaluate those assertions.  The administration has not provided that basis despite my requests to do so for more than a year.  For your convenience, I attach a copy of the court’s opinion. 

 

Karl Rove failed to appear and testify before the Senate Judiciary Committee last August 2 in response to a subpoena I issued July 26, 2007, as part of the Committee’s investigation into the firing of U.S. Attorneys.   It is my understanding that Mr. Rove’s failure to comply was based on an August 1, 2007, letter from White House Counsel Fred Fielding informing the Committee that the President would invoke a blanket claim of executive privilege to direct Mr. Rove not to produce responsive documents or testify before the Committee.  Mr. Fielding’s letter cited a memo from the Department of Justice’s Office of Legal Counsel (OLC) to assert that Mr. Rove was “immune from compelled congressional testimony” as an “immediate presidential advisor.”

 

Please advise me by no later than next Thursday, August 7, when you will withdraw the erroneous OLC opinion from Stephen Bradbury relied upon by the White House to justify its non-compliance with congressional subpoenas since that opinion has been repudiated by the court.

 

In addition, please inform me whether the court’s decision will cause you to revaluate your memos and those from OLC 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?

 

Sincerely,

 

 

PATRICK LEAHY                                                    

Chairman                                                                    

 

 

cc:  Hon. Arlen Specter 

Enclosures

 

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