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2009-01-28

Obama to Face Test on Executive Privilege After Rove Subpoenaed Again Over Attorney Firings, Siegelman Prosecution

Guests

Scott Horton, New York attorney specializing in international law and human rights. He is also a legal affairs contributor to Harper’s Magazine, where he writes the blog No Comment.

Don Siegelman, former governor of Alabama.

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The chair of the House Judiciary Committee, John Conyers, has subpoenaed former White House adviser Karl Rove to testify next week about the Bush administration’s firing of nine US attorneys and the prosecution of former Alabama governor Don Siegelman. Rove previously refused to appear before the panel, and former President Bush upheld his legal position. Rove’s attorney, Robert Luskin, said he would consult with President Obama’s White House counsel to determine the Obama administration’s stance. We speak with attorney Scott Horton and former Alabama governor Don Siegelman. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The chair of the House Judiciary Committee, John Conyers, has subpoenaed former White House adviser Karl Rove to testify next week about the Bush administration’s firing of nine US attorneys and the prosecution of former Alabama governor Don Siegelman. This marks the second time Conyers has tried to get Rove to appear in connection with what he calls the Bush administration’s politicization of the Justice Department. But it remains unclear if Rove will be compelled to appear before the panel next week.

Rove previously refused to appear before the committee, contending that former presidential advisers cannot be compelled to testify before Congress. For more than a year, former president George W. Bush upheld Rove’s legal position. The White House’s assertion of executive privilege prompted Rove and other Bush aides to refuse even to show up for a hearing. A federal judge has since rejected that position. Karl Rove’s attorney, Robert Luskin, said he would consult with President Obama’s White House counsel to determine the Obama administration’s stance.

In a press release announcing the subpoena, Conyers was hopeful, saying, “Change has come to Washington, and I hope Karl Rove is ready for it. After two years of stonewalling, it’s time for him to talk."

Scott Horton has been closely following this story. He is a New York attorney specializing in international law and human rights and the legal affairs contributor to Harper’s Magazine, where he blogs at “No Comment.” He joins us in the firehouse studio.

We’re also joined by former Alabama governor Don Siegelman, whose case is at the heart of the controversy. He was convicted of corruption and bribery and served nine months in prison before an appeals court ordered his release last year after finding substantial problems with the case. He joins us from Birmingham, Alabama.

Scott, let’s begin with you. Talk about the significance of Karl Rove being subpoenaed, to begin with, and then lay out the issues that Chairman Conyers has issued the subpoena around.

SCOTT HORTON: Well, I think it’s a test at the beginning of the new administration of its commitment to transparency, and it also presents a challenge to them about what to do with the pervasive claims of privilege that were used by the Bush administration to block congressional probes. And during the campaign and afterwards, President Obama stated that he was going to adopt transparency as a keynote. He criticized the positions the Bush administration took, and I think that will be put to the test right now.

In fact, Bob Luskin has already stated that he will contact Greg Craig, and he will ask for guidance as to what posture should be taken with respect to executive privilege. Now, there’s sort of a wrinkle here that’s interesting, and that is that Greg Craig, who is Barack Obama’s White House counsel, is also a friend of Karl Rove, something he’s talked about openly, and his law firm, Williams & Connolly — his former law firm, I should say —- represented Karl Rove with respect to some publication deals. So that presents a bit of a complication. But I think what -—

AMY GOODMAN: Do you think he should recuse himself?

SCOTT HORTON: I think it’s quite problematic for him to involve himself in this, given that relationship, so probably other lawyers in the President’s staff should be addressing this.

But I think the threshold issue is very clear, and that is whether or not the White House is going to say, “No, you don’t even have to answer this subpoena.” We have a district court judge saying that was an absurd position. Indeed, I’d say that’s pretty much the uniform position in the legal community. It was an absurd position. So he will have to respond to the subpoena. He will have to sit in the hearings, and he’ll have to respond to questions.

That still leaves open the issue of whether or not he can invoke the privilege with respect to specific questions. And, you know, the implication of the privilege suggests — it implies very strongly, because the privilege covers his communications with the President — it suggests that Karl Rove had discussions about these matters, the US attorney firing and also the prosecution of Governor Siegelman, with President Bush directly. And if so, there’s no doubt but that these things, all these things, would have been improper, potentially even criminal.

AMY GOODMAN: Start with the US attorney firings. Remind people what this is about and what it’s believed Karl Rove’s role was in this.

SCOTT HORTON: On December 6, 2006, a decision was taken to fire a group of US attorneys — it’s either seven, eight or nine, depending on how you count them up — and it became clear very quickly that this decision was taken by political operatives in the White House for very, very suspicious reasons. The US attorneys involved were all either involved with criminal investigations of prominent Republican political figures, or they had refused to proceed with criminal investigations of Democrats. So it all seems to relate to politically oriented prosecutions.

And we since had investigations both on the House and Senate side, and these investigations concluded that Karl Rove clearly was in the middle of all these decisions, seemed to have been pulling the strings. The Department of Justice conducted its own internal investigation, and Karl Rove, as well as Harriet Miers and Joshua Bolten, refused to participate with that investigation, refused to testify, withheld documents and so forth. But the investigation itself, very, very detailed report, strongly supports the suspicions that Rove and others in his office were deeply involved and improperly involved in this process, in fact documents their involvement through interviews with people in the Justice Department. And because of that, Attorney General Mukasey has appointed a special prosecutor to complete the investigation using subpoena power and, if appropriate, bring criminal charges.

AMY GOODMAN: I wanted to turn for a minute to David Iglesias, the former New Mexico prosecutor, one of the nine fired US attorneys at the heart of the scandal. I interviewed him last June and asked him to talk about the time he met Karl Rove.

    DAVID IGLESIAS: I only met Karl Rove one time. He was at a luncheon in Albuquerque. He came over and introduced himself. But, you know, he was looking to broaden the base of the party, and as an evangelical Christian, as a military veteran, and as a Hispanic, I represented the future of the party, and that was all in one package. I had run for office. I’m typically conservative on lots of social issues. And I think Rove saw that I represented the future of the party.

    But I think he also thought I was the kind of person who would file bogus voter fraud prosecutions, I would — was the kind of US attorney that would rush an indictment if it would help a fellow conservative. And, you know, I wasn’t that — I didn’t do that. And I don’t want to paint myself as the only one, because John McKay in Seattle also refused to file bogus election fraud cases in the Washington state, and Todd Graves in Missouri refused to file bogus voter fraud prosecutions after looking at the evidence. I mean, they thought they had political operatives, and what they had were principled law enforcement officials.

    AMY GOODMAN: You were a loyal member of the Republican Party and the Bush administration. What ultimately pushed you to break ranks? Was it your firing?

    DAVID IGLESIAS: Well, it was a combination of things. They slandered our reputation when the deputy attorney general testified that we had performance-related problems. We knew he knew better. We knew he had seen our evaluations. And also I knew that John McKay and Carol Lam and Charlton and Bogden and Chiara represented some of the best US attorneys out there. These were very forward-thinking, smart, principled people.

    So I think I wrote in the New York Times last year something to the effect that I knew I could be fired for doing the wrong thing, I didn’t know I could be fired for doing the right thing. And the right thing was upholding the rule of law. I mean, this is not about us losing our jobs. This is a matter of us enforcing the rule of law and separation of powers and doing what prosecutors have traditionally done in prior administrations, which was be independent and autonomous of elected officials.

AMY GOODMAN: Former New Mexico US attorney David Iglesias, interviewed on Democracy Now!. Explain, Scott Horton, the context of these voter fraud cases.

SCOTT HORTON: Well, in fact, this was being raised by the Republicans consistently and all over the country. They would talk about voter fraud, and they would bring prosecutions and commence criminal investigations. And as, in fact, one senior Republican operative explained, this was a voter suppression operation. By having this in newspapers and having it discussed, they believed they could reliably suppress Democratic turnout by two to three percent, which in marginal cases would produce a Republican win. It was fully understood that way. And they got cooperation from a large number of US attorneys, including Mr. Iglesias. He appointed a task force. He pursued it. And after fully investigating it, he concluded there’s no there there; there really isn’t any voter fraud.

AMY GOODMAN: We’re about to go to former governor Don Siegelman, but lay it out in brief. This was a case that you championed for a long time while Governor Siegelman was in jail.

SCOTT HORTON: It’s a very complex case, but in the bottom line it’s also like Oakland: “There’s no there there.” There were a great number of charges brought of petty things, and they were all the sorts of charges that historically have not been brought against political figures. The key thing in the center of it is an accusation that money was paid to a campaign fund of his by an individual who was appointed to public office. And if that’s a crime, then, of course, Mr. Rove and President Bush were guilty of it big time, since they had 146 major campaign donors appointed to public office.

But in the parameters of this case, all around it, we find the fingerprints of Karl Rove at every turn. He’s involved. He has close relations with both of the US attorneys who were involved. One of his close business confederates is in fact the husband of the US attorney who brought this case. In the end, he was also involved pushing the campaign of Don Siegelman’s opponent for the governorship in Alabama. It seems quite clear that this prosecution was brought as a political weapon to take out a successful Democratic candidate for a state house that Karl Rove coveted.

AMY GOODMAN: We’re going to go to the former governor, jailed governor of Alabama, Don Siegelman, after break. Scott Horton, stay with us. At the end of the broadcast, we’ll be speaking with the independent senator Bernie Sanders of Vermont about why he opposed Tim Geithner’s confirmation. Stay with us.

[break]

AMY GOODMAN: Scott Horton is in the studio with us, still here in snowy New York in our firehouse studio. It’s snowing all along the East Coast. And joining us from Birmingham, Alabama is Don Siegelman, the former governor of Alabama.

Don Siegelman, welcome to Democracy Now! once again. We saw you at the Democratic convention in Denver. Your response to the chair of the House Judiciary Committee issuing a subpoena for Karl Rove?

DON SIEGELMAN: Well, my spirits are lifted, but we’ve seen this once before, so it’s not a question of John Conyers’s commitment. We know he is committed to seeking the truth. I think it’s a question of how intense the people of this country feel about reaching the truth and whether we’re going to get behind John Conyers and give him the support he needs by calling, writing and faxing our members of Congress and telling them that we want justice done, which starts with bringing Karl Rove before the Judiciary Committee. And he can either plead the Fifth or tell the truth or lie, but he needs to be before that committee.

AMY GOODMAN: What do you want to hear from Karl Rove? What do you believe his involvement was in your prosecution?

DON SIEGELMAN: Well, I was brought to trial one month before the Democratic primary by Karl Rove’s best friend’s wife, who was the US attorney in the Middle District of Alabama, on charges that the New York Times said have never been a crime in America. Grant Woods, who’s the Republican — was the Republican attorney general from Arizona, said that they couldn’t beat Siegelman fair and square, so they targeted him with this prosecution. We have sworn testimony from a Republican political operative, Jill Simpson, who said that she was on a conversation with my prosecutor’s husband, who said that he had talked to Karl Rove, and Rove had spoken to the Department of Justice, and everything was wired in for them to — for the Department of Justice to pursue me.

But what — this is more important than my case. As you well know, this effort of bringing Karl Rove before the Judiciary Committee is just a start to get at the truth, the truth of not only about who hijacked the Department of Justice and used it as a political tool to win elections, but it’s also a start to find out why we got into the war in Iraq. Was it for oil, or was it for weapons of mass destruction? Who authorized torture? Who authorized the wiretaps? Who was involved in stealing elections? But this is far more important than my case or Karl Rove. This is about restoring justice and preserving our democracy. And, you know, Dennis Kucinich is talking about a truth and reconciliation commission, but we need an accountability and a responsibility commission, as well. We need to make sure that those people who were involved in these nefarious activities are held accountable and are punished, so that these things are less likely to happen again in the future.

AMY GOODMAN: Describe what happened, the chronology of events from 2004, when you were indicted, and 2005, your trial, how you were sent to prison.

DON SIEGELMAN: Well, I think we have to go back a little bit further, because I have done battle with Karl Rove for a number of years, beginning back in 1994. He saw my rise to lieutenant governor from attorney general and then to governor. While Republicans were winning other cases in Alabama, it was — I was the only Democrat who was winning. We know that Karl Rove is — Karl Rove’s buddy Jack Abramoff and Ralph Reed pumped over $10 million of Indian casino money into Alabama to defeat me beginning in 1998, to defeat my education lottery proposal in 1999, and to defeat me again in 2002. We know that Karl Rove and Jack Abramoff were involved, at least tangentially, in the stealing of my election in 2002. When I walked away from that election, I vowed to run again, to come back and to live another day.

My problems started shortly after that, when an investigation was started by the wife of my campaign opponent’s husband, who was Bill Canary’s — who was Karl Rove’s best friend in Alabama. And again, I was brought to trial one month before the election in 2006 by Bill Canary’s wife, Leura Canary. And I was convicted on charges that the New York Times said have never been a crime in America. I was sentenced to seven years in prison. I was shackled, handcuffed, taken to a maximum-security prison and put in solitary confinement in Atlanta.

I was released, as you know, nine months later, because the 11th Circuit found that there were substantial questions of both law and fact likely to result in a reversal. We had fifty-four former state attorneys general who weighed in on my behalf, saying that what I was charged with was not a crime. We’re waiting for the 11th Circuit to issue their opinion. I remain hopeful about my case.

But, Amy, again, what — you know, this discussion shouldn’t be about me. I’m just — I am a part of this — part of the evidence in a case that is building against Karl Rove and others in this administration for using the Department of Justice as a political weapon to win elections. And I think that what we need to do now is get behind John Conyers and Nancy Pelosi, who recently said that she, too, felt like that the truth must come out with regard to who politicized the Department of Justice.

AMY GOODMAN: And, Scott Horton, the process that will take place now with John Conyers as the chair, saying finally Karl Rove will have to answer, the fact is he could continue not to answer, not to show up. Isn’t that right?

SCOTT HORTON: Well, I think it’s unlikely at this point that he will not show up, because he would risk immediate contempt and being sent to prison. I think now we have a Justice Department that would actually enforce congressional contempt sanctions. But I think it’s more likely that he’s going to do what David Addington did when he was brought before the Judiciary Committee, which is selectively invoke a privilege with respect to specific questions and simply give —-

AMY GOODMAN: He replaced Scooter Libby as the -— Vice President Cheney —-

SCOTT HORTON: The chief of staff of Vice President Cheney -— and I think he will simply give non-responsive answers. But, you know, here, the invocation of privilege has been very problematic, because Karl Rove has been all over the country discussing these matters. He’s done it on Fox News. He’s done it on other cable network stations. That makes it very difficult for him to say, “I can’t answer your question.”

AMY GOODMAN: And what do you — how does President Obama, slightly going back and forth on this, saying he wants to move forward, not exactly clear what it means to look backward here — on the issue of holding the Bush administration accountable, issues of detentions, torture, it sounds like he’s drawing the line. On the issue of politicization of the Justice Department, do you have a sense of him in a different way? Same with Nancy Pelosi.

SCOTT HORTON: I think that they believe that the Bush administration went way too far. But we should also stop and say, don’t expect that the Obama White House is going to completely waive executive privilege. They won’t do that. I’m sure they’ll say Karl Rove is entitled to cite it with respect to his communications directly with President Bush. But all these peripheral matters, he’s going to be forced to give answers. And the executive privilege — he’s also going to have to answer to the special prosecutor, Ms. Dannehy from Connecticut, on all these things, and she may very well wind up going after him. I think his big concern has been talking about this under oath, because that gives rise to new crimes if he makes false statements. And he’s very much aware of that. He went through that before with the Valerie Plame matter. He really dodged a bullet in that case. He could very well have been prosecuted.

AMY GOODMAN: Don Siegelman, will you be coming to Washington anytime soon from Alabama? And what would you say to President Obama now?

DON SIEGELMAN: Well, I would say that, one, I wake up every morning with a smile on my face, because I know that we have a competent and capable president. We have an African American as president, and George W. Bush is back in Texas.

I would say that with regard to his wanting to look forward rather than backward, I think that’s important that he continue to focus on those — the issues that are important to the future of this country, but part of that is ensuring that our democracy is restored and that the people of this country have faith and trust that the Department of Justice will not be used as a political weapon in the future. And unless we find — unless we find the full truth about what went on in the Department of Justice, and unless we hold those people accountable and responsible for their behavior, then these issues are likely to become part of our political culture and happen again in the future.

Keep in mind, too, Amy, that President Bush has had and Karl Rove has had eight years to embed his people, those of like ideological mind, within the Department of Justice itself and also in US attorneys’ offices, not just as US attorneys, but as assistant US attorneys. And those people also have to be identified. Those who were working on voter fraud cases for the purpose of suppressing black votes have to be ferreted out, and they have to be held accountable. This is not going to be something that is going to happen overnight. But President Obama should be committed to ferreting out the truth and holding those people accountable, so that this kind of abuse of our Department of Justice is less likely to happen again in the future.

AMY GOODMAN: Governor Don Siegelman, thank you very much for joining us, former governor of Alabama. He was indicted and tried, convicted, served nine months in jail, ultimately was released pending appeal.

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