Calls, even among Republicans, for the resignation of Attorney General Alberto Gonzales got louder last week as documents were dumped revealing a coordinated campaign between the Justice Department and the White House to oust prosecutors based on political loyalty.
Under the circumstances, attorney Stanley Brand of the Brand Law Group said it was “very likely” that Rove would end up providing testimony.
“I think they don’t want to be subpoenaed, and they’re on the wrong side of this one,” Brand said. “They’re getting killed over this.
“I think they’ll work it out, and I think he’ll show up,” Brand said of Rove.
But Bruce Fein, a former associate deputy attorney general under Reagan, said the legal history surrounding aides’ testimony was a bit confusing — and the issue was less relevant when there were not so many presidential aides to begin with.
“The general rule has been as a matter of custom, the Congress will desist from asserting the subpoena power to compel the president and his aides” to testify, Fein explained. “It leaves the legal terrain very murky.”
“Certainly, there is no outstanding Supreme Court or other court of appeals precedent that says Congress cannot compel Karl Rove to testify,” he added.
If Congress does issue a subpoena, the White House could fight it in court or even choose to ignore it, though Fein said that would not be the smartest move as U.S. attorneys are supposed to enforce subpoenas.
Brand pointed out that Rove’s testimony hardly would be unprecedented as a swarm of former President Bill Clinton’s advisers served as Congressional witnesses.
According to the CRS report “Presidential Advisers’ Testimony Before Congressional Committees: An Overview,” there were 47 different appearances by Clinton presidential advisers before Congressional committees on a variety of topics.
The list includes Harold Ickes, then deputy chief of staff and assistant to the president, who testified before the House Banking, Finance and Urban Affairs Committee in July 1994 about the Whitewater investigation; John Podesta, then assistant to the president and staff secretary, who testified before the same committee on the same subject in July 1994; and George Stephanopoulos, who also testified at the same hearing.
Charles Ruff, then counsel to the president, testified in November 1997 before the House Government Reform and Oversight Committee on alleged fundraising abuses, while Beth Nolan, another former counsel, testified in March and May 2000 before the Government Reform Committee about the White House e-mail system.