[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
POLITICIZATION OF THE JUSTICE DEPARTMENT AND ALLEGATIONS OF SELECTIVE
PROSECUTION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 10, 2008
__________
Serial No. 110-191
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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JULY 10, 2008
Page
OPENING STATEMENTS
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 3
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 5
INVITED WITNESS
Mr. Karl Rove, former White House Deputy Chief of Staff
[Mr. Rove declined to appear at this hearing.]
APPENDIX
Material Submitted for the Hearing Record
Ruling of the Chair, the Honorable Linda T. Sanchez, Chairwoman,
Subcommittee on Commercial and Administrative Law.............. 10
Letter to Scott Pelley from Karl Rove, submitted by the Honorable
Chris Cannon................................................... 16
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Chris Cannon........................ 19
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Chris Cannon........................ 21
Letter to Robert D. Luskin from the Honorable John Conyers, Jr.
and the Honorable Linda T. Sanchez submitted by the Honorable
Linda T. Sanchez............................................... 23
Letter to Robert D. Luskin from the Honorable John Conyers, Jr.
and the Honorable Linda T. Sanchez submitted by the Honorable
Linda T. Sanchez............................................... 27
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Linda T. Sanchez.................... 29
Letter to Robert D. Luskin from the Honorable John Conyers, Jr.
and the Honorable Linda T. Sanchez submitted by the Honorable
Linda T. Sanchez............................................... 31
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Linda T. Sanchez.................... 33
Letter to Robert D. Luskin from the Honorable John Conyers, Jr.
and the Honorable Linda T. Sanchez submitted by the Honorable
Linda T. Sanchez............................................... 43
Letter to the Honorable Linda T. Sanchez and the Honorable Chris
Cannon from Bishop Joe Morris Doss, submitted by the Honorable
Linda T. Sanchez............................................... 50
POLITICIZATION OF THE JUSTICE DEPARTMENT AND ALLEGATIONS OF SELECTIVE
PROSECUTION
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THURSDAY, JULY 10, 2008
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:12 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Linda
T. Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Conyers, Sanchez, Johnson,
Lofgren, Delahunt, Watt, Cohen, and Cannon.
Also present: Representatives Jackson Lee and Smith.
Staff present: Eric Tamarkin, Majority Counsel; Daniel
Flores, Minority Counsel; and Adam Russell, Majority
Professional Staff Member.
Ms. Sanchez. The Committee on the Judiciary, Subcommittee
on Commercial and Administrative Law will now come to order.
Before we begin the business of the Subcommittee, I want to
make clear to our guests in the audience that any outbursts or
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 would recognize myself for a short
statement.
According to letters we have received from his counsel,
former presidential advisor, 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 am 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 John Siegelman.
I have 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 the Members of the Subcommittee.
But first, I would like to summarize the grounds for the
ruling as 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
obligations.
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 claim as to
former White House officials.
The proper course of action is for Mr. Rove to attend the
hearing, 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
contradicts 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
politicization 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 or 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 the foregoing reasons as stated more fully in the
written ruling that has been distributed to Members of the
Subcommittee, I hereby rule that Mr. Rove's claims 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 claims.
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?
Mr. Cannon. Thank you, Madam Chair.
I was just wondering as you read your statement if you are
aware that Mr. Rove is out of the county on a trip that was
planned long before this hearing was set.
Ms. Sanchez. We 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.
Mr. 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?
Ms. 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 come and appear before the
Subcommittee.
Mr. Cannon. It was my understanding that he actually had
communicated he had a trip planned and so could not be here
today.
Are you also aware----
Ms. Sanchez. We were not aware and we were not made aware
by his attorney or by Mr. Rove himself.
Mr. 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 have asked?
Ms. 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.
Mr. Cannon. Thank you, Madam Chair.
This hearing was called to hear from Karl Rove about
allegations that he politically manipulated the prosecution of
Don Siegelman, the firing of U.S. attorneys, and other matters.
The allegation is that, with Mr. Rove's involvement,
Democrats were prosecuted while Republicans were not, and that
U.S. attorneys that did not cooperate were sacked.
If such allegations were true, they would be very serious.
But there is no evidence supporting these allegations at all.
In fact, there is compelling reason to question the basis of
these allegations.
In the Siegelman case, the majority rests on the
transparently ludicrous allegations of Jill Simpson. Even Don
Siegelman has denied her allegations.
Equally important, the career prosecutor who led the
Siegelman prosecution--this is a career person, not a political
appointee--Acting Attorney Louis Franklin, clearly stated long
ago that the prosecution was not the result of political
influence.
To quote, ``I can state with absolute certainty that Karl
Rove had no role whatsoever in bringing about the investigation
or prosecution of Former Governor Don Siegelman.
``It is intellectually dishonest to even suggest that Mr.
Rove influenced or had any input into the decision to
investigate or prosecute Don Siegelman.
``That decision was made by me, Louis D. Franklin, Sr., as
the acting U.S. attorney in the case, in conjunction with the
Department of Justice's Public Integrity Section and the
Alabama Attorney General's Office.
``Each office dedicated both human and financial resources.
Our decision was based solely upon evidence in the case,
evidence that unequivocally established that Former Governor
Siegelman committed bribery, conspiracy, mail fraud, object
instruction of justice, and other serious Federal crimes.''
That puts the matter to rest. What about the U.S. attorney
firings?
Same answer. Kyle Sampson, the key witness told us exactly
1 year ago today that either Mr. Rove nor anyone else in the
White House ever, to his knowledge, sought the resignation of
any of the dismissed U.S. attorneys in order to seek a partisan
advantage in a given case or investigation or for any other
reason unrelated to ordinary performance concerns.
So this is all old news. And it is old news that nothing
happened.
What else is old news? As early as March 2007, the White
House was willing to let us sit down with Karl Rove and
interview him about allegations against him; that in the run-up
to this hearing, Mr. Rove was still willing to sit down and
talk to us in an interview about the Siegelman matter, with no
prejudice to the Committee's ability to institute further
proceedings if it found anything wrong.
Then on July 23, in oral arguments in the Committee's case
against Harriet Miers, the district court judge told the
Committee pointedly that negotiations should be the preferred
way to work these things out and, of course, that once again
ignoring the court's admonition and common sense, Committee
Democrats rejected Mr. Rove's offer of voluntary testimony and
opted to hold a hearing today in front of an empty chair.
If the majority was serious about getting to the bottom of
this issue, it would have taken Mr. Rove and White House up on
these offers.
The fact is that it hasn't proof that their efforts opt to
more than a partisan stunt.
Rather than indulge in partisan antics, the majority should
be attending to the truly important matters that are
confronting Congress in the few legislative days we have left
in this Congress.
We should be holding hearings on the Milberg Weiss class
action trial lawyer scandal. A convicted lawyer at the center
of the scandal says illegal kick-backs to class-action
plaintiffs are industry practice.
We have no business considering the majority's bills next
week to roll back arbitration and deliver consumers to the
trial lawyers until we get to the bottom of this abuse of our
justice system.
But we won't. We should be holding hearings on legislation
to bring down gas prices such as my bill to cut the red tape,
keeping trillions of barrels of oil from mountain shale from
getting to American consumers or my bill to equalize
discriminatory taxes on natural gas consumers so that they can
pay their bills this winter.
But we won't.
To quote Woody Allen in the movie, ``Bananas,'' this
meeting today is ``a travesty of a mockery of a sham.''
I hope we can act on the issues that are important to the
American people before we adjourn.
And I yield back the balance of my time.
Ms. Sanchez. The gentleman yields back.
This time, I would recognize Mr. Smith, the Ranking Member
of the full Judiciary Committee for an opening statement if he
so chooses.
Mr. Smith. Thank you, Madam Chair.
I do have a brief opening statement.
Madam Chair, although we find ourselves in front of an
empty chair, it is not a sign of an Administration refusing to
cooperate with Congress.
Nearly a year and a half ago, the Administration offered
the Committee a voluntary interview with Karl Rove, a senior
adviser to the president.
The Democratic majority declined the offer.
In most instances, the Administration has negotiated
successfully with Congress to resolve information requests.
Mr. Rove offered to conduct a voluntary interview regarding
the Siegelman matter. The Democratic majority refused.
Mr. Rove offered to answer written questions. Again, the
Democratic majority refused.
These offers were without prejudice to the Committee's
ability to pursue further process if it wanted to.
The offers should have been accepted. But time and again,
the Democratic majority has passed up the opportunity to gather
information.
As to the issue before us, since the presidency of George
Washington, presidents and Department of Justice officials from
both parties have asserted that the president's closest
advisers are immune from congressional testimony.
For example, in a 1999 opinion for President Clinton, then
Attorney General Janet Reno stated that, ``An immediate adviser
the president is immune from compelled congressional
testimony.''
Karl Rove serves as assistant to the president, deputy
chief of staff, and senior adviser to the president. He is the
definition of an immediate adviser. An assertion of his
immunity should be expected by anyone familiar with historical
precedence.
Once already, this Congress, the Democratic majority has
tried to force the issue of compelled testimony by immediately
advisers to the president. That effort led to contempt
resolutions against Harriet Miers and Joshua Bolten.
Litigation is pending in the district court and is unlikely
to be concluded prior to the adjournment of this Congress.
It is clear today's hearing is a likely prelude to another
recommendation of contempt of the House and the debate of
another contempt citation on the floor.
Just 17 days ago, a district court judge heard oral
arguments in the case of Committee v. Miers. The judge
emphasized unmistakably that negotiation, not confrontation, is
the preferred means of resolving situations like this. He
stressed that both sides stand to lose if they do not work the
matter out through negotiation. And he made clear that if the
parties cannot resolve the dispute on their own, they may have
to negotiate pursuant to the court's instructions.
With these admonitions fresh in mind, Republicans hope the
Democratic majority would finally accept Mr. Rove's offer
without creating a partisan confrontation.
But again, the Democratic majority has refused.
According to a recent Rasmussen poll, Congress' approval
ratings have reached a historic low; only 9 percent of
Americans believe we are doing a good job.
The American people have lost faith in the people's House.
Today's hearing in no way addresses the most pressing issues
before our nation.
Thank you, Madam Chair, and I will yield back.
Ms. Sanchez. The gentleman yields back.
Without objection, other Members' opening statements will
be included in the record.
The Chair would now entertain a motion to uphold the
Chair's ruling regarding Mr. Rove's failure to appear and to
answer questions.
Mr. Cannon. Parliamentary inquiry, Madam Chair.
Ms. Sanchez. The gentleman will state his parliamentary
inquiry.
Mr. Cannon. I take it then, the opening statements of the
Chair that embodied the ruling of the Chair. I am just
wondering why--there has been no objection to the ruling, as
far as I can understand.
Do we need to have--is it proper to have a motion to
support a ruling that has not been challenged?
Ms. Sanchez. My understanding from the parliamentarian that
it is proper to entertain a motion to uphold the Chair's ruling
even though no objections to the ruling has been stated.
Mr. Cannon. Yes, Madam Chair, thank you.
I understand that it may be appropriate to do, but I don't
understand why you would do it.
Ms. Sanchez. Well, Mr. Cannon----
Mr. Cannon. At least on our side, nobody has objected to
your motion.
Ms. Sanchez. I believe that the preferred method to make
the record is to have a motion upholding the ruling of the
Chair.
And although it might not be the gentleman's preferred
method of conducting Subcommittee business, that is what we
will do here today.
Mr. Cannon. Thank you, Madam Chair.
Mr. Conyers. Madam Chair?
Ms. Sanchez. Mr. Conyers?
Mr. Conyers. I would move to sustain the Chair's ruling.
Ms. Sanchez. The gentleman so moves. Does any Member seek
recognition to speak on the motion?
If not, then a quorum being present, the question is on the
motion to sustain the Chair's ruling.
All those in favor will signify by saying ``aye.''
[A chorus of ayes.]
Ms. Sanchez. All those opposed will signify by saying
``no.''
Mr. Cannon. No.
Ms. Sanchez. In the opinion of the Chair, the ayes have it.
The ayes have it, and the motion is sustained.
Ms. Lofgren. Madam Chair, could we have a roll call vote?
Ms. Sanchez. A roll call vote is requested. As your name is
called, all those in favor will signify by saying ``aye'' and
all those who oppose will say ``no'' and the Clerk will call
the roll.
The Clerk. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez votes aye.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Johnson?
Mr. Johnson. Aye.
The Clerk. Mr. Johnson votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt votes aye.
Mr. Watt?
[No response.]
The Clerk. Mr. Cohen?
Mr. Cohen. Aye.
The Clerk. Mr. Cohen votes aye.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon votes no.
Mr. Jordan?
[No response.]
The Clerk. Mr. Keller?
[No response.]
The Clerk. Mr. Feeney?
[No response.]
The Clerk. Mr. Franks?
[No response.]
Ms. Sanchez. Is there any other Member who wishes to cast
or change their vote?
If not, the Clerk will report.
The Clerk. Madam Chair, there were six ayes, one no.
Ms. Sanchez. A majority having voted in favor--pardon me?
Mr. Watt, would you care to vote?
Mr. Watt votes aye, and the Clerk will report.
The Clerk. Madam Chair, there were seven ayes, one no.
Ms. Sanchez. A majority having voted in favor, the motion
is agreed to.
The Subcommittee and full Committee will take under
advisement what next steps are warranted.
This concludes our hearing.
I want to thank everybody for their time and patience.
There being no more pending business today, the
Subcommittee on Commercial and Administrative Law is adjourned.
[Whereupon, at 10:31 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Ruling of the Chair, the Honorable Linda T. Sanchez, Chairwoman,
Subcommittee on Commercial and Administrative Law
Letter to Scott Pelley from Karl Rove, submitted by the
Honorable Chris Cannon
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Chris Cannon
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Chris Cannon
Letter to Robert D. Luskin from the Honorable John Conyers, Jr. and the
Honorable Linda T. Sanchez submitted by the Honorable Linda T. Sanchez
Letter to Robert D. Luskin from the Honorable John Conyers, Jr. and the
Honorable Linda T. Sanchez submitted by the Honorable Linda T. Sanchez
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Linda T. Sanchez
Letter to Robert D. Luskin from the Honorable John Conyers, Jr. and the
Honorable Linda T. Sanchez submitted by the Honorable Linda T. Sanchez
Letter to the Honorable John Conyers, Jr. from Robert D. Luskin,
submitted by the Honorable Linda T. Sanchez
Letter to Robert D. Luskin from the Honorable John Conyers, Jr. and the
Honorable Linda T. Sanchez submitted by the Honorable Linda T. Sanchez
Letter to the Honorable Linda T. Sanchez and the Honorable Chris Cannon
from Bishop Joe Morris Doss, submitted by the Honorable Linda T.
Sanchez