When Congress returns from its summer recess, it will again turn its investigative powers on questions regarding the Bush Administration's politicalization of operations in the Executive Branch that, by custom and law, are not political. By "not political," I mean these activities are properly conducted without partisan interest. With respect to them, it is improper for one political party to use the machinery of government for its own political benefit or to the detriment of its political opponents. Yet in several areas, that appears to be exactly what the Bush Administration has done.
The most prominent among these investigations are those being undertaken by the chairmen of the House and Senate's Judiciary committees, Representative John Conyers (D. MI) and Senator Patrick Leahy (D.VT), who are investigating the politicization of the Department of Justice, particularly in the hiring and firing of United States Attorneys. But an even broader inquiry is underway, initiated by the House Committee on Oversight and Government Reform, under the direction of Chairman Henry Waxman (D. CA), and that inquiry has uncovered the extensive use of federal resources by the Bush Administration to assist its political friends and punish its political enemies.
So far, the Bush White House has successfully stonewalled all these inquiries by invoking executive privilege, which it construes in a manner so extreme as to lead it to instruct White House witnesses under subpoena to not even show up at the hearings at which they are scheduled to testify. Among those now so defying the Congress is Karl Rove, the Bush White House player many believe to be at the center of virtually all of the Bush Administration's politicalization efforts.
Rove, of course, has announced his departure from the White House. While I do not much like speculation, a secretive presidency like Bush's invites it. This fact calms any qualms I might have about exploring possibilities as why Rove is leaving now, in particular.
Some Possible Explanations for Rove's Resignation
After speaking with several knowledgeable people in Washington, I found none believe Rove is being forced out. Rather, the conventional wisdom holds that Rove is leaving now in order to lower his profile during these forthcoming Congressional investigations.
One criminal defense attorney who handles "government affairs" criminal matters said Rove is doing exactly what he would advise a client of his to do: Stay out of sight. This was also Rove's strategy when Special Counsel Patrick Fitzgerald was focusing on whether Rove had committed perjury when testifying before the grand jury investigating the leak of Valerie Plame Wilson's covert CIA identity. Then, too, Rove largely disappeared. Out of sight does not always mean out of mind, but it helps. Rove kept a low public profile and was never charged with perjury, after he apparently tap-danced privately for the grand jury.
Another attorney suggested that since Rove is facing potential contempt proceedings by the House, and the Senate, or both, for his refusal to appear and testify, he has become a lightning rod for the president and the White House. Several Washington insiders viewed Rove's conspicuous "last hurrah" exit - visiting all the Sunday talk shows and giving farewell interviews to select members of the Washington press corps - as designed to help make the point to the public that he is now disassociated from the Bush White House. (Of course, this is not true, but public perception may now see him as an outsider.)
Column continues below Ã¢â€ â€œ Everyone with whom I spoke feels that there was more going on here than meets the eye. That is because they are convinced that the reason the Administration is invoking executive privilege as to Rove (and the others involved in the programs of politicization) has to do with more than protecting the prerogatives of presidential power. Thus, while Bush did not force Rove to leave he did not request that he stay either. Rove is savvy enough to know when it is time to leave, and no one is going to be surprised if the Congress finds, upon further investigation, that Rove performed as an extreme partisan when working at the White House, even with respect to areas that are reserved as non-partisan.
After all, the evidence unearthed so far, though it is still slim, already suggests that Rove was abusing his power as Bush's top political operative in the White House.
Did Rove Succeed Where Nixon Failed?
The Washington Post reports that Rove has been running a Nixonian-type political operation to benefit Bush in his 2004 reelection bid and to assist Republicans country-wide. It appears, in fact, that the U.S. Attorney firings and the White House political briefings at the departments and agencies, in blatant violation of the Hatch Act (which prohibits such activity), are merely examples of a grander scheme that operated behind closed doors.
I have long suspected that these are only small chips that have fallen from a mighty iceberg - a systematic, broad-based, wide-scale program to infuse the Executive Branch from top to bottom with Republicans stalwarts and thinking, creating an influence that will remain long after Bush has left Washington. These efforts, I believe, are part of Rove's desire to create an enduring GOP majority; it is for this reason that he has worked to operate the Executive Branch not for the public interest, but rather for the particular interests of Republicans alone.
This is all strikingly familiar to anyone familiar with the Nixon presidency. However, it may be that Rove has actually accomplished what Nixon wanted to do during his presidency, for Nixon, of course, got caught abusing the powers of the presidency, in order to insure that he remained in office, by assisting other Republicans. It is unfortunate that the June 1974 Final Report of the Select Committee on Presidential Campaign Activities is not available online as a reminder. But a central and significant aspect of the Senate Watergate Committee's investigation examined how the Nixon White House devised and employed plans like "the Responsiveness Program," which, for example, sought to "redirect Federal moneys to specific administration supporters and to target groups and geographic areas to benefit" Nixon's campaign.
Nixon also used "the powers of incumbency" as never before to help his friends and hurt his perceived enemies. While no article of impeachment directly addressed this failure "to take care that the laws be faithfully executed," his behavior provided the context for his removal. Congress was aware of Nixon's plans, and they fell short of impeachable activity largely because Nixon both had not had time to fully implement them, and managed to keep buried much of what he had already done.
Given the basically un-cracked secrecy of the Bush Administration, it is not unreasonable to suspect that Rove has managed to accomplish what Nixon failed to do, and that the Bush Administration has undertaken a large-scaled politicalization program throughout the Executive Branch during the past six-plus years.
This, I suspect, is the reason for Rove's resignation. Chairmen Conyers, Leahy, and Waxman are looking closely for such an operation, as are a number of similar but less visible inquiries underway by the Democratic Congress. Thus, the potential for such activities becoming known is very real, and this gathering storm means a few dark clouds are following Rove back to Texas. Should they burst, Rove may have far more serious problems than being in contempt of Congress.
Misusing Federal Powers Can Be a Crime Although Seldom Prosecuted
The Senate Watergate Committee's report set forth an array of civil and criminal laws that are applicable to misuse of government for political purposes. For example, the Hatch Act contains a broad proscription that an employee of an executive agency may not use his or her official authority or influence for the purpose of interfering with or affecting the result of a federal election. Such conduct has a civil sanction of dismissal from Federal service.
More seriously, it can also be a crime for a federal official to use his or her power for political purposes. On of the broadest federal criminal laws is the conspiracy statute that prohibits defrauding the government. Under federal law, which prescribes punishment by up to five years in prison, such a fraud has been broadly defined.
The leading case is the Supreme Court's 1923 ruling in Hammerschmidt v. United States. There, the Court stated, "To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicanery, or the overreaching of those charged with carrying out the governmental intention." Misuse of federal power for political purposes, thus, can fall rather easily within this statute.
There are other criminal statutes that the evidence suggests Rove might have violated, as well. Section 595 of Title 18 prohibits "a person employed in any administrative position" of the Federal Government from using his or her "official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives..." Violation of this statute can result in a fine or prison up to a year, or both.
Section 600 of Title 18 prohibits promising any Government benefit or "any special consideration in obtaining such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party" in connection with a Federal election. Violation of this "bribery-lite" statute can result in a fine of $1000 or prisons up to a year, or both.
Often, violations of these broad prohibitions, and related laws, are not discovered until an administration has departed, as occurred with the Reagan Administration. By that time, Congress has lost interest and federal prosecutors are not inclined to go after the political behavior of predecessor officials - a judgment call which is probably appropriate, for these are not the most egregious of crimes. Still, these crimes certainly represent conduct that is considered unacceptable.
Such behavior is best dealt with when Congress can expose it to voters, who know exactly what to do with a political party that the places the politics of self-interest above those of the public's interest. This is not to say that if Rove has made an utter mockery of the clear restrictions on politicizing the processes of the Executive Branch, he should be given a pass. To the contrary, Congress should double its efforts to find out why he has left town, and if he has crossed the line, refer the matter to the Department of Justice.
I would be willing to wager that Rove and his cohorts have violated one or more of these laws prohibiting uses of authority at the White House for purely political purposes, but they should only be prosecuted if their behavior was in pure defiance of these restrictions. If that is the case, such laws will, in the end, be meaningless and future Karl Roves will simply ignore laws that seek to protect the public interest.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
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