washingtonpost.com
Claiming Immunity From Beyond the (Political) Grave

By Dan Froomkin
11:48 AM ET, 01/30/2009

Just when you thought former President Bush didn't have any more tricks up his sleeve...

Michael Isikoff writes for Newsweek: "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 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."

That letter, and a nearly identical one to a lawyer for former White House counsel Harriet Miers, reasserted the White House position that the two former aides have "absolute immunity" from testifying before Congress about anything they did while they worked at the White House -- a vastly more extreme and legally unsupportable assertion than, say, a limited claim of executive privilege.

Isikoff writes: "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'."

Rove's lawyer, Robert 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."

Legal blogger Jack Balkin writes: "The fact that Bush sent these letters while he was still president makes no difference. He is no longer president. The claim of absolute immunity he is making (as opposed to executive privilege, which is not absolute) would be controversial even if offered by a sitting president, but it is even more so when offered by a former president."

Isikoff tells MSNBC's Rachel Maddow: "We certainly didn't see this one coming."

© 2009 The Washington Post Company