Politics & Policy

Unappealing Power Play

The Bush administration suffered a triple-play of setbacks last week in its dispute with Congress over hirings and firings at the Justice Department. The Justice Department’s inspector general concluded that underlings had illegally and improperly used political criteria to screen career DOJ employees; the House Judiciary Committee, chaired by Bush antagonist John Conyers, voted on party lines to cite Karl Rove for contempt; and a federal judge rejected the administration’s argument that White House aides Harriet Miers and Josh Bolten should not have to testify before Congress regarding the dismissals of eight U.S. attorneys.

A few things to keep in mind: First, the inspector general’s report found no evidence that former Attorney General Alberto Gonzales or anyone above him in the Bush White House knew about the improper hirings, much less orchestrated them. Bush’s critics, of course, will elide this finding in their rush to accuse him of “politicizing justice.” So far, however, we have no reason to think this was anything other than a few inexperienced and overzealous appointees who crossed the line.

Second, Conyers’s inquiry into the prosecution of former Alabama governor Don Siegelman, a Democrat, is based solely on the testimony of one Dana Jill Simpson, an Alabama GOP campaign volunteer. Siegelman was convicted on seven counts of bribery and mail fraud and is out on bail appealing his conviction. He claims to be the victim of a politically motivated prosecution spearheaded by Rove — and Simpson’s stories seem to back him up.

The problem is that Simpson’s stories are pure hearsay, they keep changing, and no one has ever corroborated them. She testified to Conyers in a private interview (which he subsequently released) that she once overheard some people talking about how Rove was plotting to sic federal prosecutors on Siegelman. Nowhere in her testimony did she mention meeting or talking to Rove. A few months later, however, she told a 60 Minutes reporter that Rove personally asked her to follow Siegelman and try to catch him having an affair.

Rove denies all of this, and Conyers’s inquiry into the matter appears to be nothing more than a partisan fishing expedition. Conyers wants to get Rove in front of his committee any way he can, so he can ask Rove all sorts of questions under oath and try to catch him in a perjury trap. Rove is fighting the subpoena on the grounds that Congress has no legitimate interest in the Siegelman case and can’t compel his testimony.

Even though we agree that Rove is being unfairly targeted, a federal judge’s opinion handed down last week should lead him to reconsider his approach. Former White House counsel Harriet Miers and White House chief of staff Josh Bolten resisted congressional subpoenas in the U.S. attorneys matter on the same grounds as Rove, only to have a Bush-appointed judge, John D. Bates, reject their arguments and order them to appear.

Bates was wrong not to dismiss the case outright; Congress does not traditionally have standing to bring a civil suit in federal court to enforce a congressional subpoena against an executive-branch official. Instead, Bates relied on the reasoning found in Boumediene v. Bush in finding this case fit for judicial intervention — yet another example of how Boumediene has dramatically altered the previous understanding of the separation of powers.

In light of Bates’s decision, the best approach for Rove, Miers, and Bolten is to appeal. An appeal would probably run out the clock on the current administration, and the Democrats might tire of these partisan games after the November elections. Failing that, they should appear before Congress but refuse to answer questions on privileged matters. Bates is the same judge who dismissed a challenge to Vice President Cheney’s energy task force. He is sensitive to claims of privilege and likely to accord the president’s aides a wide berth, as long as they aren’t claiming a categorical exemption from testifying before Congress.

Finally, it is worth commenting on the Democrats’ complete inflexibility in their drive to investigate these matters. Usually, fights between the executive and legislative branches over executive privilege are resolved when the two branches reach some sort of compromise, without having to go to court.

To this end, the White House has offered thousands of pages of documents, the testimony of numerous aides and promises to make senior officials like Rove, Miers, and Bolten available for private interviews, not under oath. The Democrats would rather have an election-year spectacle than a compromise. If the appeals are successful, they’ll get neither.

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