Scott Horton - Harpers.org (January 27, 2009)

Subpoena Issued to Karl Rove: “Time to talk”

House Judiciary Chair John Conyers has placed former Bush political advisor Karl Rove under subpoena. Rove is being brought before the Judiciary Committee to testify about his role in the U.S. attorneys scandal and a number of other matters, including the suspiciously political prosecution of former Alabama Governor Don E. Siegelman. His appearance date is February 2. The Associated Press reports:

“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” Conyers said. The change in administrations may affect the legal arguments available to Rove, Conyers said. “Change has come to Washington, and I hope Karl Rove is ready for it. After two years of stonewalling, it’s time for him to talk,” Conyers said.

Last year, Rove defied a congressional subpoena, attending a conference with post-Soviet oligarchs in the Crimea when he was required to appear before Congress. Rove argued that he had been instructed by President Bush not to respond to the subpoena. The committee determined by a 7-1 vote that the claim of privilege was invalid. But the Bush Justice Department refused to enforce the subpoena, requiring Congress to turn to the courts. A district court judge appointed by George W. Bush ruled in favor of Congress and against Rove, describing his claim that he was entitled not to appear or respond in any way to the subpoena as ridiculous. Rove appealed to a Republican panel of the court of appeals which did not address the merits of the case, but stayed the district court’s order because Congress was approaching its adjournment. (By the same reasoning, the subpoenas of grand juries which are about to expire could be considered “moot,” but courts regularly enforce these subpoenas. The court of appeals ruling was thinly reasoned and had every sign of being an effort to pull Rove’s chestnuts out of the fire.)

Now the tables are turned. The invocation of “executive privilege” is up to the current incumbent in the White House, Barack Obama. No doubt Karl Rove will argue that he continues to operate under the guidance of former president Bush. That position has some precedent (the argument was advanced once by Harry S Truman after he left office, but was never tested), but has generally been viewed as a legal long-shot. Obama has not addressed the Rove claim directly, but he has made a number of statements suggesting that he did not agree with the Bush Administration’s sweeping claims of executive privilege. Moreover, if Rove refuses to comply with the subpoena, the Holder Justice Department is unlikely to refuse to take enforcement action, as its legal obligation to do so is very clear.

In sum, the tables have been turned on Karl Rove. He can continue to refuse to cooperate with Congress in their probe of the U.S. Attorney and Siegelman matters, but not without consequences. If he persists in defying the subpoenas, he may be headed to jail.