Obama order could present problems for Rove
John Byrne
Published: Tuesday January 27, 2009

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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 from testifying.

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 Oval Office.