Days before leaving office, Bush's lawyer told Rove not to turn over any documents
John Byrne
Published: Friday January 30, 2009

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Four days before leaving office, and ten days before House Judiciary Chairman John Conyers, Jr. (D-MI) subpoenaed him to testify, President Bush's White House Counsel instructed Karl Rove not to appear before Congress or turn over any documents relating to his time at the White House.

The letter, on White House stationery, was addressed to Rove's D.C. lawyer, Robert Luskin, and addressed questions of whether the former White House Deputy Chief of Staff was obligated to appear before Congress relating to the firing of nine US Attorneys.

"Please advise Mr. Rove (i) 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 not to appear before Congress in this matter," then-White House Counsel Fred Fielding wrote.

The Jan. 16, 2009 letter was acquired by Newsweek's Michael Isikoff and printed online Thursday evening.

At its heart, Fielding's letter reflects President George W. Bush's decision to continue to argue that "[t]he President and his immediate advisors are absolutely immune from testimonial compulsion by a congressional committee," even after leaving office, citing a 2007 memorandum the Justice Department prepared. Ironically, the memo was prepared by the very department that Congress is trying to garner information about.

Rove's immunity, Fielding says, thus "arises from the President's position as head of the executive branch and from Mr. Rove's position as a senior advisor to the President."

A similar letter was sent to the attorney for former White House Counsel Harriet Miers telling her not to appear at a scheduled deposition with the House Judiciary Committee. Miers, the Bush White House argues, also has "absolute immunity" as a presidential advisor.

The trouble for Rove and Miers -- and ultimately President Bush -- is that the Administration is losing the battle in court. After Rove refused to show up for a subpoena the Judiciary Committee issued last year, the House of Representatives' lawyers sued to compel testimony, asserting that immunity should not apply in Rove and Miers' case.

A federal judge agreed. The case is now in appeal with a District of Columbia court.

Reached by Isikoff Wednesday afternoon, Fielding purportedly declined to comment, but an aide told Newsweek that Bush had to assert executive privilege before leaving office.

John Conyers, the Judiciary Committee's ebullient Democratic chair, decided not to wait for the court to rule. Invoking President Barack Obama, he issued a fresh subpoena to Rove on Monday.

"Mr. Rove has previously refused to appear in response to a Judiciary Committee subpoena, claiming that even former presidential advisers cannot be compelled to testify before Congress," Conyers' office wrote in a release. "That 'absolute immunity' position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as 'completely misguided.'"

Conyers' new subpoena calls on Rove to appear at deposition next Monday, Feb. 2. Specifically, it enjoins him "to testify regarding his role in the Bush Administration’s politicization of the Department of Justice, including the US Attorney firings and the prosecution of former Alabama Governor Don Siegelman."

There's a delicate dance behind Conyers' words -- one which was also conjured by Rove's attorney, Robert Luskin. That's the effort to involve President Obama, whose Administration would normally now be the arbiter of whether Rove is granted executive privilege.

Luskin said Tuesday, "It's generally agreed that former presidents retain executive privilege as to matters occurring during their term. 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."

Absent a court order upholding President Bush's claim of "absolute immunity," it's Obama who would decide if he'd extend the executive umbrella to Rove. While Obama doesn't appear to have interest in protecting Rove specifically, retaining executive privilege -- and concurring with President Bush's interpretation -- could help Obama protect himself down the road.

Obama's Justice Department must file position papers in the case Congress filed to dismiss Bush's immunity claim by Feb. 18; this is expected to give insight into the new Administration's feelings, and may shine light onto Obama's opinion of investigations into Bush officials' activities in general.

Regardless of Bush's lawyer's position, Conyers doesn't appear to be backing down.

“I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” Conyers said in a release earlier this week. “Change has come to Washington, and I hope Karl Rove is ready for it. After two years of stonewalling, it’s time for him to talk.”

Experts told Isikoff that exerting privilege beyond one's own presidency is unprecedented, as did Rove's lawyer.

"We're in uncharted territory," Luskin remarked, adding that Rove has "no personal objection" to testifying.

Reporter in CIA leak case sees 'accommodation'

Matt Cooper, the then-TIME reporter who was leaked CIA officer Valerie Plame Wilson's name by Rove, wrote Thursday that Rove will likely find some accommodation that allows him to answer at least limited questions.

"My source predicted that in the end there probably will be some kind of accommodation with Rove answering questions on some topics and not on others rather than a showdown that drags on endlessly," Cooper wrote, speaking of a Washington, D.C. attorney.

Cooper also added that Rove's attorney may have erred by seeking an opinion from Obama's counsel.

"The first interesting point the person raised is that Rove's attorney, Robert Luskin, may have made a tactical mistake in writing to White House Counsel Greg Craig for an opinion," Cooper wrote. "'Be careful what you ask for,' the source said. After all, Craig could come up with a rationale for Rove testifying. And why rush to Craig at all when you might prevail in the courts? True, the courts have been loathe to offer hard and fast rules in these cases but it would seem worth pursuing such a legal avenue before going to the Democratic White House for solace."

Karl Rove has been subpoenaed by the House Judiciary Committee, but will he get out of it again? Can former President Bush still invoke executive privilege for Karl Rove? Rachel Maddow is joined by Newsweek’s Michael Isikoff.

This video is from MSNBC's The Rachel Maddow Show, broadcast Jan. 29, 2009.

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