George W. Bush is seeking to extend his sweeping concept of executive privilege into his post-presidency, with the first battle likely to be fought over a renewed demand from House Judiciary Committee Chairman John Conyers that Karl Rove finally testify about the politicization of the Justice Department.
On Monday, Conyers reissued a subpoena for Rove, a former White House deputy chief of staff, to testify before Congress about his role in firing nine federal prosecutors deemed not “loyal Bushies” as well as the controversial prosecution of Alabama’s former Democratic Gov. Don Siegelman.
Rove’s attorney, Robert Luskin, told the Washington Post that former President Bush recently sent a letter to Rove reasserting executive privilege that would prevent Rove and possibly other ex-White House officials from testifying. Bush sent the letter at Rove's request before he left office, according to Luskin.
However, it does appear that Bush is determined to extend his broad claims of executive privilege beyond his departure from the White House on Jan. 20.
In his last years in office, Bush succeeded in frustrating congressional inquiries by asserting a sweeping interpretation of executive privilege, a tradition that grants some confidentiality for advice between the President and his top aides. Bush expanded the scope of the privilege to include even discussions among his subordinates inside and outside the White House.
In September 2008, U.S. District Judge John Bates rejected Bush’s position, saying the concept of blanket executive privilege lacked legal precedent.
“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” wrote Bates, a Bush appointee. "In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”
However, Bush’s lawyers appealed Bates’s ruling to a Republican-dominated Appeals Court panel in Washington that relied on a technicality – the looming adjournment of the 110th Congress – to declare the issue moot. [See Consortiumnews.com’s “GOP Judges Aid White House Cover-up.”]
At the time, Conyers promised not to let the issue drop, and his announcement that he is reissuing the Rove subpoena under the 111th Congress indicates the case may soon return to the federal courts.
“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court,” Conyers said in a prepared statement. “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.”
The subpoena demands that Rove appear before Congress for a deposition on Feb. 2, at 10 a.m. But it appears unlikely Rove, who was considered Bush's political guru, will show up to give testimony to the committee.
Conyers’s Judiciary Committee also has pursued testimony and documents from Bush’s last White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers about their involvement in the decision to fire the federal prosecutors. It is believed subpoenas will be issued for their testimony as well in the weeks ahead.
Rove as Victim
In public comments, Rove has presented himself as the victim of a Democratic witch-hunt, particularly after House Speaker Nancy Pelosi told Fox News’ Chris Wallace two weeks ago that she supported a renewed probe into the politicization of the Justice Department.
“I think that we have to learn from the past, and we cannot let the politicizing of the — for example, the Justice Department, to go unreviewed. Past is prologue. We learn from it," Pelosi said.
Rove, a Fox News contributor, was asked about the exchange and said Pelosi was out to get him.
"What do you think she's talking about?" Rove said. "Who do you think she was pointing a finger towards? Read carefully the description of who she said we ought to be looking at."
Rove’s lawyer Luskin argued that Rove and other Bush administration officials are protected by an umbrella of executive privilege that extends past the end of Bush’s term.
"It's generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We'll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the President and the former President."
However, President Barack Obama stated during Campaign 2008 that he believed Bush was overreaching with his claims of executive privilege. On his first full day in office, Obama also signed an executive order reining in the power of former presidents to keep their historical records secret.