President George W. Bush’s former aide and adviser, Karl Rove, has reportedly been instructed to ignore another congressional subpoena, this one issued earlier this week by Rep. John Conyers (D-Michigan). According to Newsweek, Bush’s lawyer, former White House counsel Fred Fielding sent a letter Jan. 16 to Rove’s lawyer, Robert Luskin, instructing him that then-President Bush does not want Rove to testify — even after Bush leaves office.
Fielding, citing a Department of Justice memo issued by the now much-discredited Office of Legal Counsel in 2007, informed Luskin that the department had decided that Rove, as a former adviser to the president, has “absolute immunity” from testifying to Congress about anything he did in his role as presidential adviser.
Never mind that, as I reported earlier, Judge John Bates of the U.S. District Court in Washington, D.C., strongly disagreed, saying the Justice Department’s case for “absolute immunity” was wholly unfounded in an earlier case in which former White House counsel Harriet Miers was subpoenaed to testify. As Bates put it, the Justice Department’s assertion of absolute immunity was “entirely unsupported by existing case law.” (Miers was issued a contempt citation, though it was never enforced.)
But as we already know, the Bush OLC has its own, rather unusual, ways of interpreting the law — principally, to favor the president’s desired outcome. Fielding apparently was instructing Luskin — and thereby Rove — that Bush would continue to stick to that view of the law even after he was no longer president.
So who’s in charge now?
“We’re in uncharted territory,” Luskin told Newsweek when asked whether former the former president can still control whether his former aide testifies even after the president leaves office.
Luskin has reportedly asked President Obama’s new White House counsel, Greg Craig, for his opinion on the matter. Craig hasn’t yet responded. But as I noted before, this may be the first big test of the new president’s view of the reach of executive privilege — and the sincerity of his pledges to lift the Bush-era veil of secrecy that shrouded the White House for the past eight years.