Politicization of the Justice Department and Allegations of Selective Prosecution

Press Release

REP. SANCHEZ: (Sounds gavel.) The Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, will now come to order.

Before we can begin the business of the subcommittee, I want to make clear to our guests in the audience that any outbursts, comments or disruptions in the hearing from the public will result in removal from the committee room. I just want to state that emphatically so everybody knows the rules going in. Without objection, the chair will be authorized to declare a recess of the proceedings at any point.

At this time I will recognize myself for a short statement.

According to letters we have received from his counsel, former presidential adviser Karl Rove has refused to appear today to answer questions in accordance with his obligations under the subpoena served on him, based on claims that executive privilege confers upon him immunity from even appearing to testify.

I'm extremely disappointed and deeply concerned that Mr. Rove has chosen to forego this opportunity to give his account of the politicization of the U.S. Department of Justice, including allegations regarding the prosecution of former Governor Don Siegelman. I've given Mr. Rove's written claims careful consideration, and I rule that those claims are not legally valid and that Mr. Rove is required, pursuant to the subpoena, to be here now and to answer questions.

I will presently entertain a motion to sustain that ruling, the grounds for which are set forth in writing and have been distributed to all of the members of the subcommittee, but first I would like to summarize the grounds for the ruling that follows.

First, the claims are not properly asserted. When a private party, like Mr. Rove, is subpoenaed by Congress, and the executive branch objects on privilege grounds, the private party is obligated to respect the subpoena, and the executive branch should go to court or otherwise pursue its privilege obligation. That is what happened in the AT&T case and what should have happened here. But we have not received a statement from the president or anyone at the White House directly asserting these privilege and immunity claims to the subcommittee.

Second, we are unaware of any proper legal basis for Mr. Rove's refusal even to appear today as required by the subpoena. The courts have made clear that no one, not even the president, is immune from compulsory process. That is what the Supreme Court ruled in U.S. v. Nixon, and Clinton v. Jones. Neither Mr. Rove's lawyer nor the White House has cited a single court decision to support the immunity claims as to former White House officials.

The proper course of action is for Mr. Rove to attend the hearings pursuant to the subpoena, at which time any specific assertions of privilege can be considered on a question-by-question basis. As the Supreme Court explained more than a century ago, "No man in this country is so high that he is above the law," and "all the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it."

Third, the claims of absolute immunity directly contradict the conduct of this and past administrations with respect to White House officials appearing before Congress. Only recently, current vice presidential chief of staff David Addington testified before the House Judiciary Committee, pursuant to subpoena, and former White House press secretary Scott McClellan testified without even receiving a subpoena.

In 2007 former White House officials Sara Taylor and Scott Jennings testified concerning the U.S. attorney firings before the Senate Judiciary Committee, pursuant to a subpoena.

Prior to this administration, a CRS study shows that both present and former White House officials have testified before Congress at least 74 times since World War II.

Fourth, the claims of absolute immunity and the refusal to appear pursuant to subpoena and to answer questions directly contradict the behavior of Mr. Rove and his attorneys themselves. When Mr. Rove's attorney was asked earlier this year by a media representative whether Mr. Rove would testify before Congress in response to a subpoena on the Siegelman matter, he responded, "Sure," by e-mail.

In addition, unlike Harriet Miers, Mr. Rove has spoken extensively in the media on the very subject the subcommittee seeks to question him about: his role in the alleged politization (sic) of the Justice Department, including the Siegelman case, and the unprecedented firing of nine U.S. attorneys in 2006.

Fifth and finally, especially to the extent that executive privilege is the basis for the claims of immunity as to Mr. Rove, the White House has failed to demonstrate that the information we are seeking from him under the subpoena is covered by that privilege. The courts have made clear that executive privilege applies only to discussions involving the president and to communications from or to presidential advisers in the course of preparing advice for the president. But the White House has maintained that the president never received any advice on and was not himself involved in the U.S. attorney firings and related events. The presidential communications privilege simply does not come into play here at all.

For all of the foregoing reasons, as stated more fully in the written ruling that's been distributed to members of the subcommittee, I hereby rule that Mr. Rove's claim of immunity are not legally valid, and his refusal to comply with the subpoena and appear at this hearing to answer questions cannot be properly justified.

These reasons are without prejudice to one another and to any other defects that may, after further examination, be found to exist in the asserted claim.

At this time, I would now recognize my colleague, Mr. Cannon, the ranking member of the subcommittee, for any remarks that he may have.

Mr. Cannon?

REP. CHRIS CANNON (R-UT): Thank you, Madame Chair.

I was just wondering, as you read your statement, if you're aware that Mr. Rove is out of the country on a trip that was planned long before this hearing was set.

REP. SANCHEZ: With have been in constant communication with his attorney and himself. And he has refused to testify, not because it was inconvenient to his schedule but because he is asserting that he is covered by an executive immunity claim.

REP. CANNON: So I take it you are aware that he is on a long- planned trip and this hearing was scheduled for our convenience, not his?

REP. SANCHEZ: He did not -- his attorney never mentioned it to us in all the numerous correspondence and -- specifically relating to the date that we asked him to appear before the subcommittee.

REP. CANNON: It was my understanding that he actually communicated that he had a trip planned, and so he could not be here today. Are you also aware that --

REP. SANCHEZ: We were not aware, and we were not made aware by his attorney or by Mr. Rove himself.

REP. CANNON: Are you aware that Mr. Rove has offered to sit down and talk about these things off the record -- not off the record, but in a private conversation and answer the questions that you've asked?

REP. SANCHEZ: He has tried to assert a position that he would come and discuss one matter only. And the subcommittee has significant interest in more than just one matter. We believe that he should appear like any other witness to be sworn in and to have his comments made into the record and to be asked questions by the subcommittee in a give and take that mere written questions would not suffice.

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