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FISA's over. Now back to our regularly scheduled defiance of the law and lack of punishment:

Former White House adviser Karl Rove defied a congressional subpoena to testify Thursday about allegations of political pressure at the Justice Department, including whether he tried to influence the prosecution of a former Democratic governor of Alabama.

Rep. Linda Sanchez, chairman of the House subcommittee that called Rove, ruled with backing from fellow Democrats on the panel that Rove's claim of immunity was invalid -- perhaps the first step toward holding him in contempt for refusing to cooperate.

Hmm. The president and his advisors appear to be above the law. I wish we had been alerted earlier to the necessity of the legislative branch asserting its powers against the expanding executive, so as to preserve what's left of the Constitution's checks and balances. But everyone knows that every battle is a discrete and unconnected event floating in the vacuum of space, so what would be the difference even if someone had?

Ah, me!

Anyway, what happened was that Rove's lawyer wrote to the committee the other day to say he wasn't gonna show, and decline to appear "on the grounds that Executive Privilege confers upon him immunity from process to respond to a subpoena directed to this subject." That's a new one on me. Executive privilege not with respect to declining to answer specific questions or produce specific documents, but a new breed of executive privilege that manifests itself as an absolute immunity from Congressional subpoenas.

In today's "hearing" (for which no one showed up to be heard), subcommittee chair Linda Sanchez ruled Rove's assertion of the privilege to be without merit, which could be the first step toward holding him in contempt of Congress. Of course, Josh Bolten and Harriet Miers have both been held in contempt, and we already know what happened there: the Bush "administration" has instructed the US Attorney not to prosecute the case. And this is actually Rove's second subpoena. The Senate Judiciary Committee issued the first one a year ago, but Rove never showed for that one, either. The Committee then voted to hold Rove in contempt in December of last year, but there has never been a vote before the full Senate, which would be required to refer the charges to the same US Attorney who wouldn't prosecute Miers and Bolten.

But Rove's claim could perhaps add another layer of ridiculousness to these proceedings. He claims executive privilege, but the White House says nothing. So who's right? Has he been instructed to assert this newly invented kind of immunity/ privilege or not? Well, let's hold hearings to find out whether the White House told him to do it. Only the White House surely won't testify, no doubt claiming... executive privilege. And Double Secret Immunity, too, no doubt.

Perhaps it won't matter, in that the subcommittee has ruled the claim inapplicable in any case. But it'll make for interesting (and slow) litigation if Rove's lawyer moves to block the contempt citation by demanding that a court review the question of whether or not his claim of immunity was valid, and in the alternative whether good, old-fashioned executive privilege would have applied. Would a court review it, given that there's already been a Congressional determination on it? Would we have to litigate whether or not a court can review it before we even get to what they might or might not say about it? Would it all just run out the clock until the Congress adjourned and Bush left the White House?

Mind you, there's not that much clock left. The House's schedule adjournment date is September 26th, and for the first time in a long time, the House leadership is talking about actually sticking to it or close to it, with no lame duck session planned. Remember that even if lightning were to strike and the House were to go with inherent contempt, Rove could not be detained after the House adjourned sine die. If they do that on or about September 26th, well, you can figure out the rest. Can they adjourn informally and just have pro forma sessions every once in a while until January? Sure. And if they had Rove in jail, they doubtless would consider that.

Or maybe not. Perhaps it would be enough to assert the right to hold him for inherent contempt, keep him for a few days or even a few hours, and then adjourn. It wouldn't be very satisfying, but it would be a way to at least be clear about whether the power exists or not.

Anyway, Rove didn't show up, and he invented a totally new line of bullshit about why he didn't have to along the way. So that's just great. Have a nice day!

Originally posted to Daily Kos on Thu Jul 10, 2008 at 01:25 PM PDT.

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