Executive privilege forever

EXECUTIVE PRIVILEGE FOREVER…. Earlier this week, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) let Karl Rove know — by way of a subpoena — that he still has a few questions about the Bush administration’s Justice Department scandals. So, might Rove stop by the Hill to answer lawmakers’ questions? Not if the former president and his lawyers have anything to do with it.

Just four days before he left office, President Bush instructed former White House aide Karl Rove to refuse to cooperate with future congressional inquiries into alleged misconduct during his administration.

On Jan. 16, 2009, then White House Counsel Fred Fielding sent a letter (.pdf) to Rove’s lawyer, Robert Luskin. The message: should his client receive any future subpoenas, Rove “should not appear before Congress” or turn over any documents relating to his time in the White House. The letter told Rove that President Bush was continuing to assert executive privilege over any testimony by Rove — even after he leaves office.

A nearly identical letter (.pdf) was also sent by Fielding the day before to a lawyer for former White House counsel Harriet Miers, instructing her not to appear for a scheduled deposition with the House Judiciary Committee. That letter reasserted the White House position that Miers has “absolute immunity” from testifying before Congress about anything she did while she worked at the White House — a far-reaching claim that is being vigorously disputed by lawyers for the House of Representatives in court.

Rove relied on an executive-privilege claim to ignore the subpoena the last time — the matter is still pending in the courts — but it’s far less clear if a former president can assert executive privilege after he’s left office.

Rove’s attorney, Robert Luskin, believes that former presidents still retain executive privilege on matters relating to their time in office, and with Bush having ordered Rove not to talk to Congress, Rove feels he has to comply.

“To my knowledge, these [letters] are unprecedented,” said Peter Shane, an Ohio State University law professor who specializes in executive-privilege issues. “I’m aware of no sitting president that has tried to give an insurance policy to a former employee in regard to post-administration testimony.” Shane likened the letter to Rove as an attempt to give his former aide a ‘get-out-of-contempt-free card’.”

Everyone seems to be waiting to see what Obama’s White House counsel, Greg Craig, thinks about all of this. Stay tuned.

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