[Vision2020] A Long-Lived Privilege?

[Tom Hansen]

On January 16th President Bush granted Karl Rove with what has been 
referred to, by many news sources, as "preemptive immunity"; immunity from 
congressional subpoenas, an immunity that does not expire.
 
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Courtesy of Newsweek at:

http://www.newsweek.com/id/182240
 
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A Long-Lived Privilege?
Bush lawyer directs Rove not to talk to Congress—once again
 
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.

The letters set the stage for what is likely to be a highly contentious 
legal and political battle over an unresolved issue: whether a former 
president can assert "executive privilege"—and therefore prevent his aides 
from testifying before Congress—even after his term has expired.

"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'."

The issue arose this week after House Judiciary Committee Chairman John 
Conyers announced that he had subpoenaed Rove to be deposed under oath 
next Monday to answer questions about his alleged role in the firing of 
U.S. attorneys and the prosecution of the former Democratic governor of 
Alabama, Don Siegelman. Conyers, whose panel extensively investigated both 
matters last year, signaled that he has no intention of dropping them now 
just because Bush has left office. "After two years of stonewalling, it's 
time for him [Rove] to talk," Conyers said in a press release.

But it is unclear whether Rove—or Miers, who was found in contempt of 
Congress last year when she refused to honor an earlier subpoena—is close 
to doing so. Luskin said he did not solicit the letter from Fielding, but 
maintains that its contents give his client little choice in the matter.

Fielding's letter cited the aggressive position of the Bush Justice 
Department on executive-privilege issues. That doctrine essentially held 
that White House aides not only did not have to answer specific questions 
before Congress about their presidential duties, they didn't even have to 
show up in response to subpoenas because they had "absolute immunity."

"We anticipate that one or more committees of the United States Congress 
might again seek to compel Mr. Rove's appearance, testimony or documents 
on the subject of the U.S. attorneys matter," Fielding wrote. "Please 
advise Mr. Rove ... that the President continues to direct him not to 
provide information (whether in the form of testimony or documents) to the 
Congress in this matter …"

Reached Wednesday afternoon, Fielding declined to comment. But a former 
presidential aide, who asked not to be identified talking about sensitive 
matters, said that the letter to Rove was "basically the same" as the one 
sent to Miers (and a third letter sent to former White House chief of 
staff Josh Bolten). "If the president was going to assert privilege," this 
source said, he had to do it before he left office on Jan. 20.

Luskin said that he forwarded a copy of Fielding's letter, as well as the 
subpoena he got from Conyers, to Obama's White House counsel, Greg Craig, 
and essentially asked for the new president's position on these matters.

So far, he said, Craig hasn't responded; Luskin also says he has asked the 
House Judiciary Committee to postpone its deposition of Rove until he 
hears back. The committee has agreed to put off the deposition—but only 
for a few weeks.

The issue is likely to come to a head soon. The Justice Department is due 
to state its position on executive privilege to the U.S. Court of Appeals 
in a few weeks in response to the House's attempt to enforce its previous 
subpoenas for Miers and Bolten, who were subpoenaed to turn over documents 
relating the U.S. attorneys firings. Both refused to comply, or even show 
up—relying on the Bush Justice Department's sweeping position on "absolute 
immunity" from testifying before Congress.

Few legal observers expect the Obama Justice Department to endorse that 
position, but it remains an open question how the new administration will 
define the scope of presidential privilege. Bush's attempt to assert 
privilege even after he leaves office throws a new wrinkle into the 
dispute.

"We're in uncharted territory," Luskin said to NEWSWEEK when asked whether 
a former president can still assert executive privilege after he leaves 
office. He added that Rove has no personal objection to testifying and 
will cooperate with an ongoing Justice Department inquiry into the U.S. 
attorneys firing—although Luskin says he has not yet been contacted. (Rove 
is an occasional contributor to Newsweek).

A White House aide said Wednesday afternoon that Craig's office was still 
reviewing the issue.

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Seeya round town, Moscow.

Tom Hansen
Moscow, Idaho
 
"For a lapsed Lutheran born-again Buddhist pan-Humanist Universalist 
Unitarian Wiccan Agnostic like myself there's really no reason ever to go 
to work."

- Roy Zimmerman


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