From a committee statement:

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

Miers and Rove fought an epic battle over the extent of executive privilege with the committee. They repeatedly refused to testify about the firing of nine U.S. attorneys citing the legal theory that even former presidential advisers cannot be compelled to testify before Congress about their conversations with the president. Last fall, U.S. District Court Judge John Bates who was hearing the case, rejected the Bush administration’s claims of executive privilege. Rove still failed to appear to appear before the committee last month in response to a reissued subpoena.

“This is a victory for the separation of powers and congressional oversight,” said Chairman John Conyers (D-Mich.) “It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”

Per the agreement, testimony will be held behind closed doors. The committee says it will release a transcript of the proceedings. Neither Rove nor Miers received an immunity deal in exchange for their testimony.

The agreement comes just six days short of the second anniversary of the committee’s first letter to the White House seeking testimony from Miers. Today is also the court-mandated deadline for the Obama administration to file a brief in the Miers case.

Rove’s prior refusals to testify were based on claims of “absolute immunity” due to executive privilege — the idea that even former presidential advisers cannot be compelled to testify before Congress because of the confidentiality of their conversations with the president. But the legality of that claim was rejected by U.S. District Judge John Bates as part of the ongoing suit over executive privilege, House Judiciary Committee v. Harriet Miers.

Apparently, Rove has made it clear that despite the new administration, he still won’t be showing up to testify. In a letter to Rove’s attorney, Bob Luskin, Committee Chairman John Conyers (D-Mich.) said he won’t delay the hearing any further, just so Rove can continue to blow them off:

Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to fail to appear.

Around, and around we go.

Though not discussed in the mainstream media nearly as much as the nomination of Attorney General Eric Holder, the confirmation hearing of Kagan and Associate Attorney General-nominee Tom Perrelli was eagerly anticipated in the legal world, and with good reason. Besides likely becoming the first female solicitor general, Kagan — who for the last few years has been the dean of Harvard Law School — has been on just about everyone’s short-list as a possible appointment to the Supreme Court. After the news of Justice Ruth Bader Ginsburg’s battle with pancreatic cancer came to light last week, the legal blogosphere lit up with talk about Kagan’s potential sooner-than-expected ascent to the bench.

That’s something the members of the Senate Judiciary Committee were undoubtedly aware of while they questioned Kagan and Perrelli. While some of the minority members, particularly Sen. Tom Coburn (R-Okla.) and Sen. Jon Kyl (R-Ariz.), quibbled briefly over Kagan’s lack of experience as a litigator, most seemed in awe of her reputation as not only an incredible legal mind, but also at her heralded skill at brokering discussion between partisan parties.

While Perrelli received his share of questions, the committee’s attention seemed to rest squarely on Kagan. She joked with Arlen Specter (R-Penn.), the committee’s ranking Republican, over some or her past legal writing — going so far as to call one of her own memos “the dumbest thing I’ve ever read,” and saying that the position of Solicitor General, which is sometimes called the “10th seat on the Supreme Court,” is more like being the “37th clerk.”  Both Kagan and Perrelli, like Holder before them, emphasized their commitment to running the Justice Department without politics and righting the course from the last eight years.

Both Kagan and Perrelli still need to respond to some of the senators’ questions in writing, so a committee vote to send the nominations to the full Senate is not expected until sometime next week. The hearing lasted slightly more than two hours — and if speed is an indicator of the committee’s prerogative on these nominees, things are looking very good for the Obama administration.

President Obama’s twelve nominations to the Justice Department have plenty in common. Almost all of the appointees are alums of either President Clinton’s Justice Department, Harvard Law School or both. Among them, three share a particularly interesting hobby that could signal a change in the agency — they blog.

The three appointees will serve in the Office of Legal Counsel, the under-heralded but far-reaching office tasked with giving legal advice to the president and drafting opinions for the attorney general. This division has been criticized for entwining politics and the law under the Bush administration, particularly by Jay Bybee, the former assistant attorney general and John Yoo, former deputy assistant attorney general. During his tenure as head of the OLC, Bybee issued a then-confidential memo, written chiefly by Yoo, authorizing the used of enhanced interrogation techniques on detainees. The controversial opinion, commonly called the Bybee memo, was shredded by legal scholars for its weak factual and legal foundation. It came to symbolize the political agenda and secrecy that had consumed the Office of Legal Counsel.

Illustration by: Matt Mahurin

But it looks like all that could change.

Dawn Johnsen, expected to head the Office of Legal Counsel; David Barron, principle deputy assistant attorney general and Marty Lederman, deputy assistant attorney general all blogged at one point for the legal website, Balkinization and Slate’s now-defunct legal blog, Convictions after leaving their previous stints in Clinton’s Justice Department. This group is more than just a reunion of Bloggingheads — their online legal musings signal a significant step forward for transparency and openness in the new Justice Department. What is more different from a secret torture memo than an open-thread blog post?

All three didn’t just write posts railing against Bush, they attacked the broader legal issue — the expansion of executive power. All three have written about the necessity of an independent Office of Legal Counsel, which means Johnsen, Lederman and Barron aren’t expected to be Obama’s political yes-men (or women). If their musings over the last eight years are any indication, they have firm convictions about the rule of law and the Justice Department’s role in following it — a marked change for the agency.

Dawn Johnsen

Appointment: Head of Office of Legal Counsel

In April, the former acting assistant attorney general, wrote a vitriolic piece on Convictions chiding Yoo and the Bush administration. In that post, Johnsen scathingly called Yoo’s memo “irresponsibly and dangerously false in a way that impugns OLC’s integrity.”

In many of her blog posts, Johnsen fiercely criticized the Bush administration, going so far as to call it “lawless.”

In a testament to her belief in transparency and the law Johnsen wrote:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

If confirmed, Johnsen would be positioned to put her words into action.

David Barron

Appointment: Principal Deputy Assistant Attorney General

Barron, who served as an attorney adviser at the Office of Legal Counsel in the 1990s, wrote posts at Convictions that revolved around legal arguments against Bush’s growing claims of executive power. The Harvard law professor also wrote forcefully about his support of the Boumediene decision, the case which granted Guantanamo detainees habeas corpus.

Together, Barron and Lederman formalized many of the musings that came from their blogging. For legal scholars and posterity, the two wrote a two-part article in the Harvard Law Review critiquing the role of executive power in waging war without legislative approval.

Marty Lederman

Appointment: Deputy Assistant Attorney General

Lederman, an 18-year veteran of the Office of Legal Counsel, is perhaps the most prolific of the Obama Justice Department bloggers, and the most vehemently anti-Bush. He regularly files posts for SCOTUSblog and Balkanization on issues of executive power, detention, interrogation and torture. He also doggedly followed the U.S. attorney firing scandal. Lederman wrote extensively on the Yoo memo for Balkanization.

Lederman has a few thoughts about the job Yoo, his predecessor, did as deputy assistant attorney general. In various posts, Lederman derides Yoo’s memo and goes so far as to say that “[Yoo's] legal advice, then, was a fairly direct cause — certainly a necessary cause — of the abuse in Iraq in 2002 and 2003.”

Taking Yoo’s job will give Lederman a chance to move beyond criticizing Yoo’s performance, but show how it should be done.

The positive outcome of the vote was expected after the committee’s ranking Republican, Pennsylvania Sen. Arlen Specter, endorsed Holder Tuesday.

Sen. John Cornyn (R-Texas) and Sen. Tom Coburn (R-Okla.) were the only committee members to vote against Holder. In his dissent, Cornyn cited concern over how Holder would treat intelligence personnel who participated in aggressive interrogations and detainee torture, as well as Holder’s involvement in controversial Clinton-era pardons.

Holder’s Senate Judiciary Committee hearings did not move as quickly as some might have liked. Judiciary Chairman Patrick Leahy (D-Vt.) and Specter battled over the timing of the confirmation process, with Specter and the minority delaying the Committee vote on Holder last week.

During the vote today, Sen. Pete Sessions (R-Ala.) endorsed Holder, but indicated his general hesitancy on some of President Obama’s other Justice Department nominees, though he didn’t specify who or why.

If the tepid and qualified approval of Holder’s nomination offered by Specter and Sessions are representative of the GOP’s treatment of all Justice nominees, we can indeed expect change to come to the Department of Justice — just not very quickly.

From the Committee’s press release, which is posted on The Huffington Post:

“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” said Mr. Conyers.  Noting that the change in administration may impact the legal arguments available to Mr. Rove in this long-running dispute, Mr. Conyers added “Change has come to Washington, and I hope Karl Rove is ready for it.  After two years of stonewalling, it’s time for him to talk.”

Rove’s prior refusals to testify were based on claims of “absolute immunity” through executive privilege — the idea that even former presidential advisers cannot be compelled to testify before Congress. But the legality of that claim was rejected by U.S. District Judge John Bates as part of the ongoing suit over executive privilege, House Judiciary Committee v. Harriet Miers.

The onset of the new administration creates a lot of new questions as to how Rove will answer this subpoena. Rove is relying on an interpretation of executive privilege that is no longer backed by the administration, so it’s unclear how, or if, he will still be protected.  While it looks likely that this new Congress’ subpoena will finally wrest “privileged” documents from the White House, its still unclear as to whether Rove will testify before the committee.

Some of these questions are still tied up in HJC v. Miers, but some will have to be answered as events play out. This is an entirely unprecedented area of the law, so we’ll just have to wait and see.

It would seem those in the old guard who authorized enhanced interrogation techniques might have a lot to sweat about, but one former Bushie isn’t worried: former Attorney General Alberto Gonzales.

“I don’t think that there’s going to be a prosecution, quite frankly,” Gonzales said during an interview with NPR Monday, when asked whether he was worried about being prosecuted by Holder for his involvement. “These activities . . . they were authorized, they were supported by legal opinions at the Department of Justice.”

And what did Gonzales think of Holder’s straightforward answer to the committee?

“One needs to be careful in making a blanket pronouncement like that,” Gonzales said, suggesting that it might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects.

He said people he knows at the CIA have told him that agents there “no longer have any interest in doing anything controversial.” And that, Gonzales asserted, means they “won’t be doing what they need to be doing” to protect the country.

Holder had better hope Cornyn and the rest of the Senate Judiciary minority share Gonzales’ optimistic attitude at the Committee meeting this Wednesday.

In a statement released today, Sen. Patrick Leahy (D-Vt.) called the actions “a clear signal that we are moving forward and demonstrating to the world that we can both protect our national security and remain a nation of laws that respects human dignity.” Senate Majority Leader Harry Reid (D-Nev.) said that the executive orders will “help America more effectively fight terrorism and make Americans safer,” and Sen. Jay Rockefeller (D-W.V.), outgoing chairman of the Senate Intelligence Committee, commended Obama for “using the Presidential pen to move our country and our national security in a strong direction.”

Senate Minority Leader Mitch McConnell (R-Ky.) wasn’t quite so sunshine and lollipops.  While he released a statement in which he ostensibly agreed to work with Obama, McConnell added his obvious point of contention: “in my opinion, it is safer for the American people to keep committed terrorists at a secure facility hundreds of miles away from our shores rather than in facilities located in or near American communities.”

Still, all is not lost for those worried we might be going to soft on terrorists. According to the Center for Constitutional Rights, a human rights group, Obama left some wiggle room on torture.

Specter’s announcement clearly upset Judiciary Committee Chairman Patrick Leahy (D-Vt.) who asked Specter to “note that on Friday I said several times that we could stay as long as we wanted. But everybody left,” in response to Specter’s complaints that the questioning had been of a “hurried nature.”

The delay comes as a bit of a surprise since two minority members, Sen. Orrin Hatch (R-Utah) and Sen. Mel Martinez (D-Fla.) have both announced their support of Holder’s nomination. Despite this, Specter, supposedly representing the minority, has complained about “rushed hearings” since Holder’s name was put in for attorney general.

The committee has been loosely scheduled to reconvene next week.

Late update: Politico reports that Holder’s hearings were delayed so the minority could further inquire into his views on torture. Specifically, Sen. John Cornyn (R- Tex.) wants to examine whether Holder’s stance on interrogation (last week in his testimony, Holder said “waterboarding is torture “) will mean prosecution for intelligence personnel involved in questionable interrogation techniques.

“It’s unclear right now,” Iglesias said about whether his new role was already irrelevant based on the president’s executive order. “Obviously, we have a new Commander-in-Chief and I’m a naval officer. How it affects the cases I’m working on, I don’t think anyone really knows, because the majority of the detainees will have to be prosecuted in some form.”

Asked whether this could signal a possible move back into his old job as a federal prosecutor — Iglesias was among those terminated during the U.S. attorney firing scandal –  he hedged.

“I really like being back in the prosecution world,” he said. “It would depend on the exact nature of that position. One of things I’ve learned over the last 10 years is to never say never to new opportunities.”

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