Rove Appearance Could Follow Court Ruling

Posted July 31, 2008 at 6:18pm

A federal court ruling Thursday left Democrats hopeful that they may be able to force Karl Rove and other former White House officials to testify on alleged political interference in the operation of the Justice Department, even if the witnesses refuse to answer specific questions.

But legal 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.

The Justice Department had asked the U.S. District Court for the District of Columbia to throw out a lawsuit brought by the House Judiciary Committee to compel the testimony of former White House counsel Harriet Miers and to require current White House Chief of Staff Josh Bolten to provide documents. The committee is seeking testimony on the controversial firing of U.S. attorneys in 2006.

Though he was not a party to the case, the ruling may also affect Rove. The Judiciary Committee issued a contempt citation for him earlier this week, seeking his testimony on related topics, but the House has yet to approve it.

Miers and Rove have refused to appear before the committee, and Bolten refused to provide documents, saying that they were directed by the president to assert executive privilege.

But Judge John Bates ruled Thursday that “the Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”

White House spokeswoman Dana Perino said, “We disagree with the district court’s decision; we are reviewing it, and once we have had a chance to do that, we’ll consider whether the decision should be appealed.”

Democrats immediately hailed the ruling.

“We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims,” House Judiciary Chairman John Conyers (D-Mich.) said. “We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September.”

Senate Judiciary Chairman Patrick Leahy (D-Vt.) sent letters to Rove and Bolten Thursday afternoon saying the ruling invalidates their claim of privilege and asking them to testify before the panel.

Even Republicans, who had opposed the decision to file suit to force Miers’ testimony, agreed that the court’s ruling was correct.

House Judiciary ranking member Lamar Smith (R-Texas) said in a statement, “While I am pleased the Court ruled in favor of Congress in this case, I remain concerned that the information requested by House Democrats does not merit a Constitutional showdown between Congress and the Administration. … If the Administration appeals the ruling, our Congressional prerogatives will once again be put at risk.”

Most observers said they expect the administration to appeal, figuring that any final ruling would not take effect until the next administration has taken office. The subpoena for Miers will expire at the end of the 110th Congress, and if the case drags on that long, the next Congress would have to reissue the subpoena.

“It’s a symbolic victory, at most,” said John Whitehead, president of the Rutherford Institute who had filed a brief supporting the Judiciary Committee. “It shows that the process works, to a certain extent.”

But if the Justice Department manages to push the appeals past the inauguration, Congress is likely to lose interest in pursuing testimony about alleged wrongdoings of the Bush administration, he said.

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.”

Democrats and Republicans agreed that if Miers were forced to appear, she could still refuse to answer specific questions on the ground of executive privilege, which Democrats could choose to challenge in court. But Bates discouraged both sides from asking the court to resolve these issues.

“Although standing ready to fulfill the essential judicial role to ‘say what the law is’ on specific assertions on executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively,” Bates wrote.