Rove's victory

During 2004, a senior White House official, widely thought to be Karl Rove, was quoted as saying that the Administration now created its own reality, making it impossible for the "reality-based community" to keep up. Some time later I indirectly heard that Rove had made an even bolder statement--that reality was what he said it was, and that if he could convince 51% of the American people that he was right, nothing else mattered. Rove's sudden and as yet quite unexplained resignation on Monday confirmed how successful he was in several respects--even among his supposed opponents in the reality-based community, the nation's elite newspaper reporters. Here are some of the things the analysis pieces said about him.

“His advocates credit him with devising a winning strategy twice in a row for a presidential candidate who seemed to start out with myriad weaknesses. His detractors blame Rove for a style of politics that deepened divisions in the country, even after the unifying attacks of Sept. 11, 2001. Both sides attributed outsize qualities to him, and he enjoyed mythic status for much of the Bush presidency.” (Anne E. Kornblut and Michael D. Shear, the Washington Post. )

"But Mr. Rove leaves the White House anything but victorious. His legendary reputation, forged by steering George W. Bush to two arguably unlikely victories, was seriously diminished by the Republican defeats of 2006. He is blamed in Republican circles for many of the political problems President Bush has suffered in a difficult second term — problems that occurred as Mr. Rove expanded his writ and tried his hand at policy." Adam Nagourney, New York Times)

"In nearly a decade as the guiding political strategist for George W. Bush and the Republican Party, Karl Rove was often hailed as a genius. He masterminded Bush's rise to national prominence, directed his two winning presidential campaigns and wrote a campaign playbook for GOP success in Congress and statehouses across the country." Tom Hamburger and Peter Wallstein, Los Angeles Times.

The flaw in this picture was pointed out by Sidney Blumenthal in Salon. Rove did not mastermind a George W. Bush victory in 2000; he masterminded a defeat. Bush lost the popular vote by a substantial margin. In Florida a very measurable majority of voters went to the polls intending to vote against him, but four things went wrong. First, hundreds were prevented from voting by a pre-election purge of the rolls that relied on the broadly similar names of Florida voters and felons from other states. Second, the misleading ballot in Palm Beach cost Al Gore at least a few hundred votes. Thirdly, the votes (as we learned many months later) were miscounted in Republican areas, giving Bush a crucial couple of hundred votes. And fourthly, Al Gore asked for only a partial, not a full recount, and five Republican-appointed Supreme Court justices stopped even that, (Congratulations are in order for Mark Silva of the Chicago Tribune and Peter Canellos of the Boston Globe, both of whom managed to write their analyses without referring to a 2000 "victory."

Rove spent the last six years and a half years securing President Bush's power with a mixture of fear, hatred, and corruption. 9/11 enabled the President to step into the role of protector of America's safety, while portraying the Democrats as too soft, both because they wanted to preserve American civil liberties and to fight only those wars that would actually help, rather than hinder, the war on terror. The gay marriage issue helped mobilize the hatred of those who fear sexual difference, especially, I suspect, within themselves. And the whole federal government was largely reshaped to serve the political purposes of the Republican Administration. The rush to privatize government services continued apace, creating more and richer contractors who could make more and bigger campaign contributions. We are now learning how various agencies received political briefings during campaign seasons and apparently targeted programs to key Republican districts. And last year, Rove apparently helped orchestrate a plan to force U.S. Attorneys to bring spurious vote fraud claims against Democrats by firing some of those who refused to do so. Not since the 1870s, when the federal government was much smaller, has it been so brazenly used for purely political purposes.

The success of Rove's broader linguistic strategy continues as well. By the end of last year the essential failure of the Administration's policy in Iraq was very clear to the American people. On the one hand, we had never had even half as many troops as the occupation of Iraq would require; on the other, the political basis for the united, democratic Iraq we sought did not exist. But by going forward rather than back, the Administration has changed the terms of the debate to whether the surge, which never had a chance, is "working"--and has given its many acolytes in the media the chance to claim that it is, despite all evidence (frequently discussed here) that it isn't even changing the military balance in our favor. And the long-term Republican strategy is already clear: to use the surge as the basis for yet another stab-in-the-back theory about how Democrats ended the war just as it as on the verge of victory. (Lots of evidence suggests, indeed, that at least some of the possible Democratic victors in 2008 will be sufficiently intimidated so as to continue the war at a reduced--and therefore even more hopeless--scale.)

None of the stories about Rove referred to the Abramoff scandal. Even though we have known for more than a year that Abramoff aids visited the White House dozens and dozens of times during the first few years of the Bush Adminstration, and even though Abramoff passed a key staffer on to Rove, Rove has so far escaped direct involvement. That investigation is after all being carried out by the Gonzales Justice Department (even though a Special Prosecutor has never been more appropriate.) Perhaps some new revelation is at hand. But at the moment that Rove, standing next to an obviously shaken President Bush, announced his resignation, he went out ahead. He was still controlling the discussion of public affairs in the United States.

After last week's post on executive privilege I had an interesting exhange with a friend of mine, a lawyer and legal journalist, about the state of the law. He pointed out that in several Watergate-era decisions, federal courts gave explicit recognition (sadly) to the idea of executive privilege and the value of confidential communications with the President. (We should note, however, that such communications are not at the heart of the current controversy over U.S. Attorneys.) The most important case on the subject of Congressional power to secure evidence, he said, was Senate Select Committee on Presidential Campaign Activites v. Richard M. Nixon, which the D. C. Court of Appeals decided in May 1974. In it, the court not only acknowledged the existence of executive privilege, but refused to let the Senate Watergate Committee hear five tapes of conversations between Nixon and its star witness, John. W. Dean. The decision, however, was narrowly drawn, and hardly supports Nixon's and Bush's extraordinary claims of immunity from supoena power

The court, speaking through Judge David Bazelon, followed its own precedent of a year later, when it had ordered the White House to turn the same tapes over to the special prosecutor, Archibald Cox. The need for confidentiality, it argued, had to be weighed against competing interests. In the earlier case it had concluded that the competing interest of an effective grand jury proceeding in a criminal case outweighed the need for confidentiality, and Nixon had eventually complied. In this case, however, the Senate Committee was seeking the tapes for two less compelling reasons: to resolve contradictions in testimony before it (especialy between Dean and H. R. Haldeman, who claimed to have based part of his testimony on listening to the tapes himself), and for legislative purposes. Meanwhile, the White House had already released edited transcripts of the tapes. The court did not find the committee's need to be overwhelming in this case.

The court, however, added some very interesting comments about another contemporary proceeding. To begin with, it specifically rejected any broad executive right to withhold information.

It is true, of course, that [HN5] the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. ³² The Congress learned this as to its own privileges in Gravel v. United States, ³³ as did the judicial branch, in a sense, in Clark v. United States, ³⁴ and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, ³⁵ but, instead, on the nature and [**20] appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires, and our decision implies, no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.

32 Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 385, 463 F.2d 788, 794 (1971). See Gravel v. United States, 408 U.S. 606, 627, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972).

The court then put the specific case under review within a broader context of Congressional power, both theoretical and actual.

" . . . Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the [*732] Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. ³⁷

37 E.g., Reply Brief of Senate Select Committee, et al., at 21-23.

"We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite [**22] apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. ^38"

The last paragraph was in effect a preview of the decision the Supreme Court reached three months later with fatal consequences of Nixon’s Presidency—that he had to meet the requests of the House Judiciary Committee. In short, the Appeals Court did not deny the kind of general investigative authority that Raoul Berger showed the Congress had always possessed towards the doings of the Executive Branch—and specifically acknowledged the authority of impeachment investigations, even if directed (as they need not be) against the President himself. In short, the powers Berger identified in the book that I discussed last week remain intact. The Congress only needs to exercise them.