And all that’s assuming that DOJ was less than willing to support Rove’s no show, which is just one possibility.

No one here needs to be reminded about what it would mean to 99% of Americans if John McCain is allowed to put this man in charge of his economic policy.

You’re probably correct that all Fielding had to work with was the letter Bradbury wrote in connection with a Congressional subpoena from a year earlier. Which would explain the passive, almost indirect, way in which Fielding used it in his letter to Luskin. If so, I would say that’s already unethical conduct.

Had Fielding actually received written confirmation from OLC that it couldn’t justify asserting EP (or any other legitimate basis to ignore) the current subpoena — and hasn’t this administration relied on the characterization of such advice as binding on the executive branch? — then Fielding’s letter would be considerably farther beyond the ethical pale. Under color of law, he would have knowingly led a private individual unlawfully to ignore a valid subpoena. I wonder what the criminal law gurus here would say to that?

My guess is that Mukasey will try to fudge the issue altogether. He might try the DOJ’s venerable, “We already responded fully to your request”. More likely, he’ll try the “parallel lines” fudge. Something like, “If waterboarding is torture, then it’s illegal,” a rhetorical device that attempts to hide whether the lines intersect by refusing to connect the obvious dots and say that waterboarding is widely regarded as torture and that waterboarding is illegal.

In this case, it would be, “The Committee wants to ask Rove about his conduct during his tenure as White House adviser. It can’t do that….” All while avoiding asserting EP or admitting whether the behavior the Committee does want to ask Rove about was part of his official duties. I think the technical term for that is “circle jerk”. The DOJ’s getting good at it. Keep the calls going, this time to Committee staffers with questions their CongressCritters ought to ask.

As to the path of the ICRC memo, this WaPo article is a little more clear, but not a lot.

46 et seq. I basically agree with everything you are saying, bmaz, from a standpoint of how DOJ/Fielding will handle things and the practical, short term effect. But I still really like the approach for several reasons. First and foremost is that this (the calling of Rove before Congress) is a political conflict and all things involving framing are important on those kinds of conflicts. The framing point is a nice one if the press or the committee or anyone picks it up and runs with it and hammers on it. Mukasey won’t about-face imo, but he should have to pay the political consequence for being craven, as should the others invovled

So to hammer on the point that DOJ is not taking action on Rove’s failure to appear to answer questions about the politicizing of the Seigelman prosecution, bc DOJ is saying those questions impact on Rove’s “official duties” in the Exec, is politically a win. Mukasey probably would say, under questioning if it got to that, that he did not agree with that framing, and that the docs speak for themselves, etc. but something like “Rove’s WH Duties Included Overseeing DOJ Political Prosecutions” is a nice possible headline to have in the offing, or in the present with blogs if nothing else.

Then there is the secondary, non-political front. That’s the Seigelman prosecution itself and the appeals process there. And that’s where it is nice to see political pressure making DOJ and the WH shoot themselves in the foot some. Bc in the Seigelman case, you aren’t in a political confrontation between Executive and Legislative branches anymore. You are in a citizen v. Exec setting taking place in the Judiciary. And the public record on what the WH has and has not done is some nice fodder there, imo.

Karl Rove can’t answer questions about the handling of the Seigelman prosecution bc his official wh duties included his involvement in and handling of the Seigelman prosecution? Really – hmmm, I have to think Seigelman’s lawyers are going to have fun with that as an admission against interest for the WH and on the discovery front for their prosecutorial misfeasance defenses.

Someone could/should have some real fun with drafting discovery there – identify the persons and documents who are aware of, reference, explain, outline, detail, etc. etc. etc. involvement of Rove and his office in the Seigelman prosecution; etc. etc. etc.

All Seigelman needs is a Judge who was a Lets Make a Deal fan and who will say, “President Bush [ex-Pres probably by the time it plays out] com’on down.”

So while I don’t think that DOj will operate politically in the confrontation between Congress and the WH in any way but poorly and corruptly, I’m all in favor of having the fight against the DOJ Consiglieres take place on two fronts at once, bc eventually someone forgets to cover their backside.

If bets were on, though, I’d bet money that at some point someone will use bmaz’s words about the document/letters/memos speaking for themselves, almost exactly.