Obama to Face First Big Test on Executive Privilege

After Rep. John Conyers (D-Mich.) re-subpoenaed Karl Rove, former aide and adviser to President George W. Bush’s, to testify before Congress on his role in the Bush administration’s politicization of the Justice Department and prosecution of former Alabama Gov. Don Siegelman (D), Rove’s lawyer Tuesday asked the Obama White House for guidance, The Huffington Post reports.

Does Rove’s past claim of executive privilege, which Bush backed, still exist under the new administration?

Good question.  In the past, Rove, with Bush’s support, has claimed an “absolute immunity” as a former presidential adviser and refused to appear before Congress. President Obama, in the past, has criticized that stance. But will he continue to do so, now that he’s the president?  After all, the executive privilege would now protect him and his cabinet, too.  So is it a closed legal question?

For the answer, I think it’s worth look back at what U.S. District Judge John Bates, a Bush appointee, had to say about it when he ruled on the same “absolute immunity” claim asserted by former White House counsel Harriet Miers.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisers in this or any other context,” he wrote. Then, just in case you weren’t paying attention:  “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law.”

Interestingly, but perhaps not surprisingly, the Bush administration’s Office of Legal Counsel had issued a memorandum concluding exactly the opposite.

Judge Bates continued:

Executive privilege is not absolute even when Congress — rather than a grand jury — is the party requesting the information. . . . Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress.  That would eviscerate Congress’s historical oversight function.

Quoting the Supreme Court in a case called US v. Bryan on the matter, Judge Bates added, as if specifically anticipating the congressional stand-off with Rove:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

That emphasis was added by Judge Bates, by the way, which makes very clear where he, a conservative Republican federal judge, stands on the matter.

We’ll find out soon enough what Obama’s views are. Given the statement from Rove’s lawyer, it looks like it’s all in the president’s hands now.