The Senate Judiciary Committee’s effort to land presidential adviser Karl Rove as a witness runs headlong into the Bush White House’s well-established reluctance to subject high-level staffers or internal documents to Congressional scrutiny.
But intense political pressure surrounding the U.S. attorneys scandal — in which Rove has become a prominent player — could overwhelm the administration’s opposition.
Charles Cooper, a former assistant attorney general under former President Ronald Reagan, said it would be “extraordinary” if Rove were permitted to come to Capitol Hill.
“I don’t think it’s going to happen because I think the president is going to react very negatively,” Cooper said. The president has a “very serious attitude towards ... protecting the prerogatives and dignity of his office.”
In fact, House Judiciary Chairman John Conyers put out a statement Friday saying the White House had failed to meet a deadline for reaching agreement on providing documents — and testimony from Rove and others — and that he would schedule a vote on issuing subpoenas.
A scant few presidential advisers have testified before Congress since Bush was elected in 2000, and those instances have been extremely controversial.
Condoleezza Rice, then national security adviser, initially declined, and then agreed, to testify before the Congressionally mandated 9/11 commission in April 2004. As assistant to the president for Homeland Security — a staff- rather than Cabinet-level position — Tom Ridge testified on several occasions before the House and Senate in 2002, but not without resistance from the White House, according to a 2004 Congressional Research Service report.
Rove — one of Bush’s closest allies and friends — never has testified before Congress and it is unclear under what circumstances, if any, he would testify, even as his role in the U.S. attorneys scandal widens. Media reports last week revealed Rove asked about the firings of U.S. attorneys in January 2005, long before he previously was thought to be involved.
The White House aide could be deposed in some kind of informal arrangement with the Judiciary Committee, which could include a private interview with questioning limited directly to the topic.
Cooper said that’s how information often was extracted from officials in the Reagan White House, for instance.
“I would strongly suspect that this kind of issue would be worked out through that type of compromise,” Cooper said.
Last week, the Senate Judiciary Committee authorized the issuing of subpoenas for five senior Justice Department aides to serve as witnesses in explaining how and why at least eight U.S. attorneys were fired for apparently political reasons in 2006. Aides still are working out the details of how they will provide information to the committee.
But Democrats delayed issuing subpoenas for Rove and ex-White House counsel Harriet Miers — instead they invited them in letters to appear voluntarily — apparently in hopes of striking a deal with the White House. White House counsel Fred Fielding was on the Hill last week meeting with key lawmakers and seemed to suggest that the officials would be made available under certain circumstances.
In the past, Bush has not been shy in asserting executive privilege or separation of powers arguments in protecting presidential documents and aides.
But this is an instance where political considerations may trump legal ones as the scandal grows and continues to irk Hill Democrats and make front-page headlines.
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.
Former Sen. Scott Brown, R-Mass., candidate for U.S. Senate in New Hampshire, holds his hand over his heart during the singing of the national anthem as he waits to take the stage for his town hall campaign rally with Sen. John McCain at the Pinkerton Academy in Derry, N.H., on Monday, Aug. 18, 2014.