In an interview Thursday with right-wing talk show host Bill O'Reilly, Rove, who is also a Fox News contributor, said one of former President Bush's last acts before he left office was to have White House Counsel Fred Fielding write a letter stating that Rove was protected by "absolute immunity" and that he can legally ignore a congressional subpoena.
"I've been directed on Jan. 16, by the outgoing president's legal counsel not to respond to a subpoena...exerting privilege on behalf of the former president," Rove said.
The letter Fielding wrote was addressed to Robert Luskin, Rove's longtime Washington, D.C. attorney. It appears that Luskin requested the letter on behalf of Rove who was likely aware that Congress would continue to pursue his testimony after Bush left office.
"On behalf of your client, former Senior Adviser to the President Karl Rove, you have previously asked us whether, in view of the President's assertion of Executive Privilege over Mr. Rove's testimony relating to the U.S. Attorneys matter, he must appear, give testimony, and produce documents to the House Judiciary Committee," Fielding's letter says, according to a copy obtained by The Public Record. "We have previously been advised by the Department of Justice that Mr. Rove has absolute immunity from compelled Congressional testimony as to matters occurring while he was senior adviser to the president."
"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's letter to Luskin says. "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 and that consistent with the president's exercise of executive privilege relating to his testimony, and documents, and in view of the Department's longstanding position on the immunity question, the President directs him, in the exercise of this constitutional immunity, not to appear before Congress on this matter."
Luskin sent the letter to President Barack Obama's White House Counsel, Gregg Craig seeking the Obama administration's position on matters related to Bush's unprecedented privilege claims even though he is no longer president. White House Press Secretary Robert Gibbs said Craig is reviewing it.
Bush administration officials have previously said that former President Bush was unaware of and played no role in the decision to fire federal prosecutors. Since executive privilege usually applies to internal communications and documents it's unclear how the privilege rule would apply to Rove's testimony if Bush never discussed the firings or played a role in the dismissals as he and his advisers have maintained.
Fielding also sent letters to attorneys representing former White House Counsel Harriet Miers and Bush's former Chief of Staff Josh Bolten, both of whom were subpoenaed last year to provide the Judiciary Committee with documents and testimony related to the attorney firing. Bush asserted executive privilege in that case as well.
In fact, according to letters sent to Elliot Mincberg, chief counsel of oversight and investigations for the Judiciary Committee, by Miers attorney, the Judiciary Committee had quietly issued a subpoena to her on Jan. 9. Miers was asked to provide a deposition to the panel on Jan. 16. She did not comply with the subpoena and Conyers' committee did not state publicly that he sought her testimony earlier this month.
Miers' attorney, George Manning, wrote to Mincberg Jan. 15, and enclosed a copy of a letter Fielding prepared on Jan. 15 which said Miers had "absolute immunity."
"I am in receipt of the subpoena to Ms. Miers dated January 9, 2009," Manning's letter says. "Please find attached a letter from the Counsel to the President of the United States informing Ms. Miers that, in view of the Executive Branch's assertions of executive privileges and immunities in this matter, she continues to be directed not to provide information (including documents or testimony) to the Congress in this matter, including the deposition scheduled for January 16, 2009."
Earlier this month, a new set of House rules was passed reviving subpoenas issued during the 110th Congress.
Fielding sent similar letters last year on behalf of Rove, Miers and Bolten after all three were subpoenaed to testify about the role the White House played in the firings of nine U.S. Attorneys in December 2006 and Rove's role in the apparent political prosecution of former Alabama Gov. Don Siegelman.
That letter said the "President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee."
Last year, the Justice Department's Inspector General and the Office of Professional Responsibility issued a 356-page report on the U.S. Attorney firings that "found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys."