Begin forwarded message:
From: dasg...@aol.com
Date: February 2, 2009 12:48:35 PM PST
To: ramille...@aol.com
Cc: ema...@aol.com, j...@aol.com, jim6...@cwnet.com,
l...@legitgov.org, lar...@rawstory.com
Subject: Bush Asserts "Executive Privilege <and Immunity to
Prosecution> IN PERPETUITY"!!
Justin Sullivan / Getty Images
Rove was instructed by then White House counsel Fred Fielding to exert
executive privilege [even when George W. Bush was no longer President]
if subpoenaed.
A Long-Lived Privilege?
Bush lawyer directs Rove not to talk to Congress [EVER]
By Michael Isikoff
Jan 29, 2009
http://www.newsweek.com/id/182240
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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