If you’d given up following the Senate Judiciary Committee weighing its next move against White House aides who blew off its subpoena, you’re not alone. There was some sporadic movement on this over the summer, and then a few other issues — namely the confirmation process for a new Attorney General — put the matter on the backburner.
Well, it’s back.
A Senate chairman acknowledged explicitly on Thursday that President Bush was not involved in the firings of U.S. attorneys last winter and therefore ruled illegal the president’s executive privilege claims protecting his chief of staff, John Bolten, and former adviser Karl Rove.
Leahy directed Bolten, Rove, former political director Sara Taylor and her deputy, J. Scott Jennings, to comply “immediately” with their subpoenas for documents and information about the White House’s role in the firings of U.S. attorneys.
“I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation,” Leahy wrote.
At first blush, this may sound like bad news, that Leahy is letting the president off the hook for his possible role in a major scandal. But that’s not really what’s going on here — Leahy was rejecting the White House’s executive privilege claim, and in order to do so, he had to make clear that Rove and Bolten had not consulted with Bush on executing the U.S. Attorney purge.
The executive privilege claim “is surprising in light of the significant and uncontroverted evidence that the president had no involvement in these firings,” Leahy, D-Vt., wrote in his ruling. “The president’s lack of involvement in these firings — by his own account and that of many others — calls into question any claim of executive privilege.”
In other words, Leahy effectively said, “Executive privilege pertains to matters directly involving the president and his aides. Since Bush wasn’t involved, there’s no reason Rove and Bolten can’t have a friendly chat with the Senate Judiciary Committee.”
Of course, if Leahy and Senate Dems pursued this further, they would need the law-enforcement cooperation of the Justice Department. That may be tricky.
Unlike Gonzales, Mukasey did not rule out allowing a federal prosecutor to take the case of any contempt citations passed by Congress. House leaders also have filed a contempt citation in their chamber against Bolten and former White House Counsel Harriet Miers, but no floor vote has been scheduled.
Likewise, a new attorney general scrambled the political calculus for citations in the Senate. Leahy held off on his ruling while the committee moved Mukasey’s nomination, in part because committee officials felt there seemed little point in pursuing citations the White House seemed certain to block.
But Mukasey’s testimony and his promise to quit if Bush ignored his legal advice gives any citation — even the threat of one — more weight.
It was not clear, however, that Leahy’s ruling Thursday would amount to more than a threat before Congress adjourns next month for the holidays.
Jim Oliphant notes how things could unfold.
The next step would be for Leahy’s committee and then the full Senate to vote on contempt citations for Rove and the rest. But even if that happens, the matter would then be referred to the U.S. attorney for the District of Columbia for prosecution.
That man is Jeffrey Taylor, whose previous job just happens to have been as an adviser to Gonzales.
Stay tuned.