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House Strikes Deal for Rove Testimony

By Jason Leopold
March 4, 2009

The House Judiciary Committee cut a deal with representatives of ex-President George W. Bush that will result in aides Karl Rove and Harriet Miers testifying in Congress’s long-running investigation into the firings of nine U.S. Attorneys in 2006. But the testimony, at least for the time being, will not be public.

Democrats in Congress have been seeking testimony from Miers and Rove about the Bush administration’s firing of the nine U.S. Attorneys, who were deemed not “loyal Bushies.” Bush barred the witnesses from cooperating by asserting a broad claim of executive privilege. Before leaving office, Bush insisted that his executive privilege extended into his post-presidency.

Rove and Miers will provide “transcribed depositions under penalty of perjury,” the panel’s chairman, John Conyers said in a statement released Wednesday. Conyers said an agreement was reached "that invocations of official privileges would be significantly limited."

Conyers said the Judiciary Committee reserves the right to have Rove and Miers testify publicly in the future, but he did not indicate when that might happen.

"I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush administration's claims of absolute immunity,” Conyers said. “This is a victory for the separation of powers and congressional oversight.

“It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

Conyers said the Judiciary Committee also had reached an agreement with the Bush administration to secure White House documents that may contain information about the U.S. Attorney firings.  

“Under the agreement, the landmark ruling by [U.S. District Court] Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation,” Conyers’s office said.

Last July, Bates ruled that the White House’s legal argument of blanket executive privilege lacked legal precedent and that Miers must comply with the congressional subpoena with the possibility of invoking executive privilege only on a question-by-question basis.

Bates called the White House executive-privilege position “entirely unsupported by existing case law. … In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

Conyers’s committee also has subpoenaed Bush’s former Chief of Staff Josh Bolten. Conyers’s office would not comment on where things stand regarding Bolten’s testimony.

Obama’s Role

The timing of Conyers’s announcement came on the same day the Justice Department was due to file legal briefs with the U.S. Court of Appeals for the D.C. Circuit stating whether the Obama administration supported Bush’s broad claims of executive privilege. As of Wednesday afternoon, legal briefs were not available on the federal court systems Web site.

Obama’s Justice Department attorneys told the appeals court two weeks ago that it was hoping to negotiate a settlement in the matter and avoid a lengthy court battle.

“These tripartite discussions have been complicated and time-consuming," the Justice Department said in its court motion last month. "The requested 14-day extension is appropriate to permit these negotiations an opportunity to succeed, potentially obviating the need for this Court to address the sensitive separation-of-powers questions presented in this appeal."

Two weeks ago, White House Counsel Gregory Craig said Obama has privately urged congressional lawmakers to try and negotiate a settlement over a separate dispute in which Rove refused to appear before Congress and testify about the federal prosecutor dismissals.

"The President is very sympathetic to those who want to find out what happened," Craig said. "But he is also mindful as President of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle."

Michael Hertz, an acting assistant attorney general in Washington, told the appeals court “the inauguration of a new President has altered the dynamics of this [Miers-Bolten] case and created new opportunities for compromise rather than litigation.”

House Speaker Nancy Pelosi said the deal "is a great victory for the Constitution, the rule of law, and the separation of powers."

"I appreciate the strong leadership of Chairman John Conyers and the assistance of the Obama Administration," Pelosi said. "Congress now has the opportunity to uncover the truth and determine whether improper criteria were used by the Bush Administration to dismiss and retain U.S. Attorneys."

As part of the deal, Conyers said the Judiciary Committee also has the right to secure testimony from former White House attorney William Kelley if his panel’s inquiry turns up evidence requiring he discuss his role in the attorney firings.

In an interview with me two years ago, John McKay, the former U.S. Attorney for the Western District of Washington, said he believed Kelley and Miers were responsible for his firing.

According to a Justice Department watchdog investigation into the firings of the federal prosecutors, McKay’s firing was due, in part, to the fact that he would not convene a federal grand jury and secure indictments of alleged voter fraud in the 2004 governor's race in the state in which Democrat Christine Gregoire defeated Republican Dino Rossi by a margin of 129 votes.

McKay told me some Republicans in his district with close ties to the White House demanded that he launch an investigation into the election and bring charges against individuals for voter fraud. But McKay concluded there was no evidence to support the suspicions.

McKay also said he believes he was not selected for a federal judgeship by local Republicans in Washington State last year because he had not filed criminal charges against Democrats.

McKay said he requested a meeting with then-White House Counsel Miers to discuss the matter.

"I asked for a meeting with Harriet Miers, whom I had known since work I had been involved in with the American Bar Association, and she immediately agreed to see me in August of 2006," McKay told me.

McKay said that when he met with Miers and her deputy William Kelley at the White House, the first thing they asked him was, "Why would Republicans in the state of Washington be angry with you?"

That was "a clear reference to the 2004 governor's election," McKay said in characterizing Miers’s and her deputy's comments. "Some believed I should convene a federal grand jury and bring innocent people before the grand jury."

The meeting with Miers and Kelley did not have a positive impact on McKay's request to be appointed a judge at U.S. District Court. Instead, McKay said it appears that he landed on the list of U.S. Attorneys to be fired just a few weeks after his meeting with Miers and Kelley.

Conyers’s office did not say whether Rove also would testify about the prosecution of former Alabama Gov. Don Siegelman, which Conyers demanded when he subpoenaed Rove for the third time late last month.

Siegelman has long maintained that Rove was intimately involved in the prosecution as part of a strategy to blunt Democratic southern inroads that Siegelman’s governorship represented.

Jason Leopold has launched his own Web site, The Public Record, at

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