January 27, 2009
A little-noticed twist in an order issued by President Barack Obama the day
after his inauguration may present problems for former White House Deputy Chief
of Staff Karl Rove and other Bush Administration officials that have been targeted
for their alleged role in various scandals.
Rove was subpoenaed Monday afternoon by House Judiciary Committee Chairman
John Conyers (D-MI). When the dogged Democrat subpoenaed him last year, Bush
Administration lawyers invoked “executive immunity” to prevent Rove
This year, however, George W. Bush is no longer in the president’s chair. Determination
of executive privilege must now also be examined by President Obama’s lawyers.
In fact, Rove’s lawyer made direct reference to Obama’s role in any future decision
to enjoin Rove’s appearance on the congressional witness stand Monday night.
“It’s generally agreed that former presidents retain executive privilege
as to matters occurring during their term,” Rove’s lawyer, Robert Luskin,
told The Washington Post. “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.”
Luskin doesn’t concede that Rove isn’t covered by Bush’s blanket immunity,
but appears to acknowledge that the question of keeping Rove off the witness
stand has become more complex.
“The Attorney General and the Counsel to the President, in the exercise
of their discretion and after appropriate review and consultation under subsection
(a) of this section, may jointly determine that invocation of executive privilege
is not justified,” Obama said in his executive order Jan. 21. “The
Archivist shall be notified promptly of any such determination.”
In addition, a White House counsel to President Bill Clinton told The Washington
Post late Monday that a recent executive order issued by President Obama directing
the National Archives to consult with Justice Department and White House lawyers
“concerning the Archivist’s determination as to whether to honor the former
president’s claim of privilege or instead to disclose the presidential records
notwithstanding the claim of privilege,” could open the door to the release
of more information relating to controversies under the Bush Administration.
“The language,” the Post wrote, “according to W. Neil Eggleston,
a White House associate counsel during the Clinton administration, leaves open
the possibility that more information could emerge in some long-running controversies.”
Whether Rove can stay off the witness stand indefinitely is an open question.
He could certainly plead the Fifth — invoking his constitutional right to avoid
self-incrimination — and refuse to answer questions. But Obama’s order opened
the door to the release of presidential records the Bush Administration fought
aggressively to keep out of the public eye.
On the flip side, Vice President Dick Cheney recently won a court case seeking
his vice presidential records; the court said that the Vice President alone
gets to make the determination as to which records are personal and which records
should become public. The Presidential Records Act, which requires Administrations
to surrender their files to the National Archives upon leaving office, provides
an exemption for records of a personal nature.
Obama might also effectively protect Rove and President Bush by retaining a
broad interpretation of executive privilege. Such an interpretation wouldn’t
be designed to save Rove from congressional investigators — instead, it would
allow Obama to protect himself and his team upon his own departure from the