Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in connection with its investigation into the firings of nine U.S. attorneys, according to an agreement reached Wednesday.
The agreement ends a long-running feud between the House of Representatives and former President George W. Bush over the executive's power to shield current and former aides from congressional subpoenas. It also allows the Obama administration to avoid taking a position in a sensitive separation-of-powers case that could have created an unfavorable precedent in the U.S. Court of Appeals for the D.C. Circuit.
Rove and Miers "will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury," according to a statement by House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), announcing the pact. The committee also reserved the right to have them testify publicly, and the parties agreed that "invocations of official privileges would be significantly limited," the statement said.
Click here (pdf) for a copy of the agreement.
The agreement comes as a federal prosecutor's probe into the firings appears to be gaining momentum. Then-Attorney General Michael Mukasey tapped Nora Dannehy, an assistant U.S. attorney from Connecticut, last September, following a report on the firings by the Justice Department's two ethics watchdogs. The report's authors said they were stymied by officials who refused to cooperate with DOJ investigators, and they advocated for a prosecutor with subpoena power to pick up where the report left off.
In the committee's inquiry, Bush had asserted that his former aides were absolutely immune to congressional subpoenas, meaning they didn't even have to appear in person to assert executive privilege. Judge John Bates of the U.S. District Court for the District of Columbia rejected the claim last year, after the House of Representatives filed a lawsuit against Miers and Bush's then-chief of staff, Joshua Bolten, for documents and testimony related to the firings. The lawsuit also implicated Rove, who ignored congressional subpoenas to testify about the firings and the prosecution of former Alabama Gov. Don Siegelman.
Bates' ruling will stand, but the Bush administration's appeal to the U.S. Court of Appeals for the District of Columbia will die there. The Justice Department and the House filed a joint motion (pdf) Wednesday night to put off the briefing schedule until after the terms of the agreement have been met, at which point the parties will move to dismiss the action.
White House Counsel Gregory Craig, Bush’s lawyer, Emmet Flood, and House General Counsel Irvin Nathan were at the bargaining table for weeks, as the Justice Department pressed the D.C. Circuit for more time to allow the parties to reach a political solution. The Justice Department's initial brief was originally due on Feb. 18, but the court granted a two-week extension.
As part of the agreement, Bush will also have to turn over White House documents relevant the probe, and depending on what the committee finds, it may also have the right to depose William Kelley, a former White House lawyer who was involved in the firings.
"This is a victory for the separation of powers and congressional oversight," Conyers said in the statement. "I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”
White House Counsel Gregory Craig said in a statement that "the President is pleased that the parties have agreed to resolve this matter amicably."
He called the agreement "the product of a tremendous amount of hard work, patience, and flexibility on both sides."
Days before leaving office, Bush had White House Counsel Fred Fielding send letters to Rove, Miers, and Bolten, instructing them them to continue to ignore congressional demands for information about anything they did while at the While House. Rove has said he was not opposed to testifying, but was bound by Bush's order.
Rove's lawyer, Patton Boggs' Robert Luskin, said the agreement was "good news."
"Mr. Rove has consistently maintained that he would not assert any personal privileges to refuse to appear or testify, but was required to follow the direction of the President on matters of executive privilege," Luskin said in a statement. "Mr. Rove looks forward to addressing the Committee’s concerns."
Lawyers for Bush and Miers could not immediately be reached.
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