Mukasey to SJC: Investigation of Rove’s Involvement in Siegelman Should Take Place … Somewhere Else

There has been some misunderstanding about Karl Rove’s refusal to show up to testify before HJC tomorrow. While Luskin referred to executive privilege to justify Rove’s refusal to appear tomorrow,

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

And though Luskin parses wildly to pretend that the subject of this hearing–Siegelman’s prosecution and other selective prosecutions–is identical to the subject on which Rove was subpoenaed to testify before the Senate Judiciary Committee and for which Bush did invoke executive privilege–the firing of the nine US Attorneys.

Mr. Rove is simply not free to accede to the Committee’s view and take a position inconsistent with that asserted by the White House in the litigation [about the subpoenas regarding the US purge].

No one has ever asserted that Bush was invoking executive privilege with regards to this appearance by Rove. In fact, Rove himself, back in May, not only admitted that Bush had not yet done so but implied that Bush would have to do so in this case (and, he suggested, Bush would "probably" do so–though that hasn’t happened yet).

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. [my emphasis]

But no one has asserted that Bush has invoked executive privilege in this case. The sole legal rationale Rove has given for not showing up, even in the absence of executive privilege being invoked, is a memo that Steven Bradbury wrote that may or may not apply to this case. For example, that memo only applies if Rove is willing to claim that politicizing prosecutions was part of his official duties as Senior Advisor to Bush. Suffice it to say that not even Mr. Unitary Executive thought that memo was sufficient basis for blowing off HJC, and that on a topic (rationalizing torture) that probably would be considered among the official duties of OVP’s counsel in this Administration.

As of right now, the White House has declined to give Rove real legal protections for blowing off HJC tomorrow. Perhaps they’ll give him a last minute reprieve and invoke executive privilege in the next 24 hours. But as of right now, someone–either in the White House or DOJ, which would have to buy off on any invocation of executive privilege–has chosen not to do so.

Which is why I find this exchange from today’s Senate Judiciary hearing with Michael Mukasey so interesting. Chuck Schumer (who I suspect is finally as sorry as the rest of us have been for months that he foisted Mukasey onto the American people) is asking Mukasey about the progress of the Office of Professional Responsibility investigation into the Siegelman prosecution.

Schumer: Mukasey, at confirmation hearing troubled about politicization of prosecutions. Urged you to get to bottom of Siegelman. I pointed out at time, witnesses have contended that his case was selectively prosecuted. Jill Simpson, pictures of Siegelman, Rove personally contacted DOJ, Karl Rove has refused to appear to testify about Siegelman. You were reluctant to look at it. It’s time you get to bottom of this. In unusual decision released Siegelman. Substantial question of law or fact reversal. 54 bipartisan AGs supporting appeal. Underscores flimsiness of case. I have to tell you, nothing has troubled me more than this. It’s like making DOJ like the justice department in a banana republic. OPR investigation in Siegelman. When did it begin. When will it be done?

Mukasey: Don’t know. Meet regularly with head of OPR, no reason to believe anyone’s slow-rolling that?

Schumer tries to get Mukasey to commit to making the results of the OPR investigation public. But then–after Muaksey refused to commit to make the report public and an enraged Schumer responded that such a response called into question our judiciary system–Mukasey suggested there were other means to investigate what happened in the Siegelman case (the implication being that those other means would permit a public accountability).

Schumer: Will you make OPR findings public?

Mukasey: Depends on what they are. For the same reasons as I discussed with Kohl, I don’t know what they’re going to find.

Schumer: Calling into question the very fundamentals of justice.

Mukasey: Various avenues in investigating, including investigating the source.

And then, when Schumer presses on the need to know about Rove’s role in the prosecution, Mukasey specifically says–again–that there are other means for investigating Rove’s role in the matter.

Schumer: That’s not what we’re discussing here. I’m asking that, if the allegations are true, is there any reason not to make it public? If Rove suggested a second prosecution?

Mukasey: Underlying evidence. Why should that not be made public. I don’t see publicizing source of allegation if allegation appears to be true.

Schumer: Should Rove be intereviewed?

Mukasey: Matter for OPR.

Schumer: You don’t think that given the allegations that have been made, that Karl Rove should maybe not be interviewed here.

Mukasey: Avenues for conducting investigating other than OPR? [my emphasis]

Twice today, when Schumer asked Mukasey about whether there would be a public accounting of the Siegelman investigation, Mukasey said there were other avenues for conducting an investigation. Once, Mukasey’s reference to "other avenues" of investigation pertained specifically to Rove.

Call me crazy, but as of now, there is no IG investigation (which would have a public report) into Rove’s role in the Siegelman prosecution. A criminal investigation would only have public results if Rove were indicted. What other avenues for investigation are there–that promise a public accounting of Rove’s role in Siegelman’s prosecution?

I can think of one: Congress.

Now I don’t know if Mukasey intended to suggest to Congress that it was the proper forum to investigate Rove’s persecution of Governor Siegelman. Hell, given the crap Mukasey spewed today, I don’t even know that he sincerely cares whether Karl Rove took out a political opponent using our judicial system.

But given the fact that, for some reason, Rove has not yet gotten the executive privilege he expected, and given the fact that the Attorney General keeps insisting there are other means of finding out about Rove’s role in the Siegelman prosecution, someone ought to clarify what Mukasey meant. Because, at the very least, it seems to present a really good case to pressure Mukasey for prosecuting Rove for contempt.