House Judiciary Committee Chairman John Conyers is threatening Karl Rove with contempt for the latter’s refusal to appear at a congressional hearing in response to a subpoena. Rove is evidently asserting that, as a former senior adviser to the President, he is absolutely immune from compelled testimony relating to his service in that capacity. This is the same position that former WH Counsel Harriet Miers is taking in the case pending before Judge Bates.
As he did about a year ago with respect to WH Chief of Staff Josh Bolten, Conyers has explicitly invoked the possibility of using inherent contempt to enforce the committee’s subpoenas. I have previously suggested that even mentioning this possibility was an extraordinary step to take, particularly with regard to an executive branch official. There are now several factors that could lead to the actual use (or at least attempted use) of the inherent contempt procedure.
First, the Department of Justice has itself endorsed the inherent contempt procedure as the appropriate means for testing the validity of a congressional subpoena to an executive branch official. This would give the House considerable political cover if it were to proceed with inherent contempt.
Second, Judge Bates is currently considering whether the House can enforce a subpoena against executive officials in court. If the judge rules that this is not an option, the House could argue that inherent contempt is the only viable means for enforcing its subpoenas.
Third, if the House were ever going to use inherent contempt, Rove would make a pretty inviting test case. He is not exactly a sympathetic character, being generally portrayed (most recently in Scott McClellan’s book) as a ruthless political operator. The political nature of his duties, as well as the fact that he is not even a current WH employee, make the argument that he is absolutely immune from congressional subpoenas look particularly weak.
It should be noted that Judge Bates seemed fairly skeptical of the absolute immunity argument during the June 23 oral argument. In questioning DOJ lawyer Carl Nichols, the judge noted that the administration’s absolute immunity position was not supported in the caselaw, and he suggested that Harlow v. Fitzgerald, 457 U.S. 800 (1982) (rejecting the notion that presidential aides have an absolute immunity from civil suits for damages), cut against that position. Bates also expressed the concern that absolute immunity for senior presidential advisers would have the effect of converting the qualified executive privilege into an absolute privilege.
I assume that the House will not move on an inherent contempt proceeding until Judge Bates issues his ruling on the motions before him. If Bates allows the civil contempt proceeding to go forward, or if he reaches the merits and rules in favor of the executive branch on the absolute immunity argument, the House would presumably not proceed with inherent contempt. If, on the other hand, the court were to dismiss the case without reaching the merits of the absolute immunity defense, the stage would be set for extraordinary spectacle of an inherent contempt proceeding against Rove.