Looking Backward

By Dan Froomkin
12:35 PM ET, 01/28/2009

As I noted yesterday, House Judiciary Committee Chairman John Conyers Jr. has issued a new subpoena to former Bush White House aide Karl Rove. Rove deflected an earlier effort to compel his testimony about the politicization of the Justice Department.

Zachary Roth writes for TPM Muckraker: "On the question of whether we’ll get to the bottom of the Bush White House’s role in the US Attorney firings, it’s starting to look more and more like the ball is squarely in President Obama’s court….

"[J]ust now, Rove’s lawyer, Robert Luskin, told TPMmuckraker that he had already forwarded Conyers’ subpoena to the Obama White House, asking them to give an opinion as to whether President Bush retains his ability to assert executive privilege."

Gail Russell Chaddock writes in the Christian Science Monitor: "So far, the Obama administration has not commented on how it will interpret issues of executive privilege affecting the previous administration.

"'Certainly the rule of law is something that’s very important to this president, as is the pursuit of justice of those who have been wronged. But with a huge crisis and two wars, it’s not a top priority of his to start out by looking over what happened in the last administration,' says an administration official not authorized to speak for attribution.

"Obama’s early decisions on the exercise of executive power will be among the closest watched of his presidency.

"'This case exemplifies the tension he now faces. The day after huge layoffs by most of the major businesses in the country, he’s meeting with Republicans trying to win their support for an economic stimulus bill, while across the aisle, Democrats in Congress have just subpoenaed one of the major figures of the Bush administration for what could be a serious investigation,' says Julian Zelizer, a congressional historian at Princeton University. 'The clash between dealing with anger of the past and the need to focus on the future is now front and center in the early part of his presidency.'"

Law blogger Jack Balkin writes that whatever Obama decides, "Rove will still go to court to defend the privilege, whether Obama supports it or not. As a result, we can expect that Rove will not have to testify for some time, perhaps not for years."

Meanwhile, Marisa Taylor writes for McClatchy Newspaper: "The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.

"For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government’s deliberative process.

"The ACLU’s request, however, comes after President Barack Obama last week rescinded a 2001 Justice Department memo that gave agencies broad legal cover to reject public disclosure requests. Obama also urged agencies to be more transparent when deciding what documents to release under the Freedom of Information Act."

Dan Nguyen and Christopher Weaver yesterday launched a Web feature on ProPublica that lists and describes the OLC memos that are still secret. ProPublica's Chisun Lee explains: "These memos laid the legal foundation to many of Bush’s most criticized counterterrorism efforts — the claims of unilateral executive authority to surveil, detain, and try terrorism suspects, unfettered by Congress or international law. Their disclosure could reveal what move was considered when, why and at whose behest."

The New York Times editorial board marvels at former attorney general Alberto Gonzales’s "bizarre" comeback attempt, in which he is "painting himself as an upstanding man victimized by a ‘mean-spirited town.'" (See this post for background.)

The Times writes: "Mr. Gonzales said he was not worried about being prosecuted for his actions because he was “acting in good faith” and — yes — following orders.

"That smug self-assurance should be another powerful reminder to the White House of the need for an unsparing review of all of Mr. Bush’s policies on torture, wiretapping and executive power. Only by learning the details of those disastrous decisions can the nation hope to undo the damage and make sure these mistakes are not repeated."

And in a few more looks back, Juliet Eilperin writes in The Washington Post: "Interior Department officials ignored key scientific findings when they limited water flows in the Grand Canyon to optimize generation of electric power there, risking damage to the ecology of the spectacular national landmark, according to documents obtained by The Washington Post."

Carrie Johnson writes in The Washington Post: "In his last days in office, President George W. Bush formally rejected clemency requests from a host of prominent business and political figures, including junk bond king Michael Milken and former California lawmaker Randy ‘Duke’ Cunningham, according to newly released Justice Department records.

"Bush’s decision frustrated several well-heeled felons and the expensive Washington lawyers they hired to make their case. Over the past several months, lawyers with GOP ties and veterans of the White House counsel’s office signed on to advocate for convicts at sums that at times exceeded $500,000, according to lawyers who received solicitations."

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