As American As Apple Pie; As Old As The Constitution?

(CBS)
Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
When you saw this weekend's headline from 60 Minutes: "GOP Operative: Rove Tried to Smear Dem" your first reaction is to say: Surely this is not news. [editor's note: Link to full story is now Did Ex-Alabama Governor Get A Raw Deal?] Former White House advisor Karl Rove has made a career out of "smearing" his political opponents. Just ask Joseph Wilson and his wife, Valerie Plame. Indeed, a litany of Rove's targets would fill up the rest of the column. So why is this smear different from all other smears?

It is different – and perhaps significant – because Rove's target, Alabama Democrat Don Siegelman, also was a target of the Justice Department during Alberto R. Gonzales' reign of error there. A bribery case against Siegelman, dismissed in 2004, suddenly came alive again in 2005 thanks to the same political miscreants who later begat the U.S. Attorney scandal. And guess with whom the Congress wants to talk about that scandal? That's right, Karl Rove.

Rove already has been found in contempt of Congress – by the Senate Judiciary Committee anyway – for failing to turn over information about the U.S. Attorney scandal. At the time, late last year, the defense was "executive privilege" – Rove's conversation about political matters (who would serve in the Justice Department) were within the purview of executive-branch secrecy. It is the same defense upon which former White House counsel (and Supreme Court nominee) Harriet and former White House chief of staff Joshua B. Bolton rely in finding off a similar contempt citation earlier this month from the House of Representatives.

Now come allegations that, at the least, suggest a pattern of behavior on the part of Rove. With the update from Scott Pelley on Sunday's newsmagazine, the portrait we now get of Rove is positively hypnotic. In it he keeps chanting… "must get Siegelman… must get Siegelman…either by baloney bribery case or by soliciting others to obtain dirty, extortion-worthy pictures of him… must get Siegelman…" And you can bet that Democratic lawmakers are going to start saying aloud: if Rove were capable of authorizing the sleazy hit on Siegelman why we are only now just learning about what hesitation in the world we he have had to "fix" the U.S. Attorney there to finish the job?

Technically speaking, the question to me and for me is: does the new twist make Rove's "executive privilege" defense any less profound? The answer is: no. Because somewhere someone will argue that dirty tricks like the ones alleged against Rove are after all part of the ocean of executive-branch "advice" that the President receives that must remain confidential lest it dissuade future "smearers" from pushing to smear. In other words, dirty politics is as American as apple pie and as old as the Constitution.

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