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Claiming Immunity From Beyond the (Political) Grave

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."

By Dan Froomkin  |  January 30, 2009; 11:48 AM ET
Categories:  Looking Backward  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Lawyer Watch
Next: 'Progressive Federalism' Comes to Washington


Lock up Rove and Miers together in the same cell as Time's Judith Miller; keep 'em there until they change their loyalty to The United States of America....Buzzards.

Posted by: fedup3 | January 30, 2009 12:32 PM | Report abuse

As it seems to always be, the Bush administration is pushing the limits of credulity.

Yet I remember something about past presidents getting some degree of 'approval' before their documents were released. Anyone have info on that?

Posted by: rpixley220 | January 30, 2009 1:09 PM | Report abuse

Yet another "I can't believe they're doing this" moment from Bush & Co., thumbing their noses (or giving us the finger) at the rest of us law-abiding citizens. There must be some *really* dreadful /criminal stuff there to warrant such ridiculous efforts to shield everything.

Posted by: JCinCT | January 30, 2009 1:28 PM | Report abuse

And since we're hearing about this ten days into the new administration, God only knows what other gifts from the past await us in the future.

Posted by: hiberniantears | January 30, 2009 1:43 PM | Report abuse

The country needs to use this situation to establish an incontrovertible precedent! Aside from the partisan issue in this specific case, can't we agree that the president gets to decide what government secrets to keep from the American people? We have one president at a time, and that office should have the authority to make any government matter public, whether documents or testimony. The president has the authority to withdraw, at any time, secrecy and/or privilege protections. How could it be otherwise?

The issue of whether the other branches can compel disclosure against the president's will is a separate one - that also needs clarification.

Posted by: ath28 | January 30, 2009 1:53 PM | Report abuse

Here, here Ath28. If the Presidents doesn't want future generations viewing him negatively upon the disclosure of negative secrets, then Presidents should conduct their administrations honorably. They would be enticed to act honorably if they understood that they had no post administration ability to protect secrets.

Posted by: hiberniantears | January 30, 2009 2:10 PM | Report abuse

"ordered Rove not to turn over any documents"... wait a minute. Rove is personally holding documents produced in his roles acting for our government? Is that even legal? I would have thought they would be required to be kept in the administrative offices.

Posted by: 4afreepress | January 30, 2009 3:07 PM | Report abuse

And people are surprised by this how? The only way ANYONE from the Bush mal-administration will testify is if they're dragged down the aisle. They spent their entire time telling Congress and the courts to f*%! off. That's not about to change,as far as they are concerned.

Posted by: lyndenmcphee | January 30, 2009 3:09 PM | Report abuse

Why wouldn't Bush just issue a blanket preemptive pardon to Rove, Miers and Bolton before leaving office? That way, even if they are compelled to give testimony, they won't face criminal prosecution.

Or am I missing something here?

Posted by: ToddinHB | January 30, 2009 3:38 PM | Report abuse

Bush tells Rove to refuse to answer Congress Questions. John Boehner gloats on how the republicans voted as a block on the stimulus package. The Republican Commentariat continues to write OP ED pieces that treat domestic policy as being set by the Conservative Rump that held sway for the last eight years.

I Know Boehner and Bush were there when Obama took the oath, I saw them. Were they drugged into catatonia, ore off in Hannahlea with the Partier in Chief, that that fact didn't register?

It is beginning to look like they think that they are a Government in exile.

Except for the exile, which muich of the country would heartily approve, it is all just swamp gas and moonshine.

I hope they stay out there in never never land until after the 2010 elections, when they may find themselves permanently joining the Lost Boys fighting Princess Tiger Lilly and Captain Hook, while we straighten out the reality grounded universe.

If we can.

Posted by: ceflynline | January 30, 2009 3:39 PM | Report abuse

So let's see, Dan, when was it we heard "I thought the lack of pardons was classy"? Why, that was just yesterday. And who said it? Why, it was you, Dan.

Still see a whole bunch of class here? I bet not.

Myself, I see backdoor pardons by throwing up roadblocks to justice as showing even less class than last-minute pardons; which is to say, about as classy as a typical Bush F-you to America.

Yes, this man was our President. For eight years, God help us.

Posted by: jpk1 | January 30, 2009 3:41 PM | Report abuse

Seems to me that there are two conflicting priorities here, the need for some secrecy and confidentiality and the need for accountability. How about if the current president gets to make the call? If Obama agrees with Bush that a certain item needs to be kept from the public, all very fine and well. If he doesn't, the files get opened up and shared with whoever is authorized to share them.

Posted by: rlg3526 | January 30, 2009 3:55 PM | Report abuse

Rove, Meirs, Bush, Cheney, Libby, Rumsfeld, Gonzales, Wolfowitz, ... Most of the previous adminstration should spend time in prison till they realize the rule of law.

I have a suspision, that Bush pardoned all these people and classified his pardon, so people would never find out when they don't get into trouble, just like he classified the unclassification of Valerie Plame's CIA status.

Posted by: thinkagain | January 30, 2009 4:07 PM | Report abuse

Why is the late unlamented Bubblehead having a cow over the possibility of Lardbottom testifying. Is he guilty of something?

Posted by: ruinedbruin | January 30, 2009 4:55 PM | Report abuse

"Why wouldn't Bush just issue a blanket preemptive pardon to Rove, Miers and Bolton before leaving office? That way, even if they are compelled to give testimony, they won't face criminal prosecution. Or am I missing something here?"

Yes, what you're missing is: after these guys are done testifying, what protects Cheney and Bush from prosecution? The answer is, nobody is going to testify.

Posted by: fzdybel | January 30, 2009 7:26 PM | Report abuse

I'm getting pretty tired of "executive privilege." If you ask me, the most powerful man on Earth should be at home in a glass house. Only by putting Big Brother under a magnifying glass like a bug on a plate have we got any hope of surviving the raw power of the *New* *Improved* American Presidency a.k.a. Unitary Executive.

Outside of the national security area, any advice, especially political advice, that can't be given in public probably isn't worth hearing in any case.

Posted by: fzdybel | January 30, 2009 7:33 PM | Report abuse

This action is totally consistent with George W. Bush believing that he can unilaterally make up laws on the fly. For the good of the country, the new administration should make it perfectly clear that no president is above the law.

Posted by: svand | January 30, 2009 8:42 PM | Report abuse

That george Bush would claim authority after leaving office only confirms his delusions that he really does think that he is untouchable and above the law.Perhaps the sound of prison doors closing behind him will awaken him and bring him back to reality.It's over for you George accept it and fade away to the trasheap of history where you belong.

Posted by: wcoffey20 | January 30, 2009 11:06 PM | Report abuse

If he had nothing to hide when he was in office, he should have nothing to hide now.

The converse is that if he had something to hide then, he still has to hide it now. A pardon wouldn't hide it, it would only leave Rove in a position to go free. This way, Rove is still protecting someone, or several someones.

Posted by: boscobobb | January 31, 2009 12:59 AM | Report abuse

Mr.Isikoff tells Ms. Maddow that "We certainly didn't see this one coming"?

What? Does Mr. Isikoff think this guy Bush closed off all of the escape routes for him and members of his crime family by not making public announcements of pardons?

Alert to Mr. Isikoff:
Step 1. Open eyes.
Step 2. Get ready to see the rollout of secret pardons that Bush issued prior to departure. Bush will say that the pardons are secret because of national security reasons. Another move by the Bush Dream Team that is striking but only for its brillant absurdity. No one can make nothing into a national security urgency like Bush. Those stay out/get get out of jail card secret pardons will be issued sparingly and only as a last resort, however. Tactically, Bush make have to act sooner rather than later because the composition of the Bush Supreme Court will change as justices announce retirements. President Obama is not expected to nominate new justices who will follow Bush orders.

Posted by: Patriot3 | January 31, 2009 2:14 PM | Report abuse

Clear & extensive behavior by Karl Rove, pointing towards a pattern of willful & devious criminal activities, back when Rove & Co were raising a chorus of alarm about terror & the need to support honest efforts by Rove & Co to "protect the homeland."

Whether hiding Karl Rove's email from the socalled CIA leak investigation.....or funneling trillions of taxpayer dollars into the coffers of Bush contractor cronies....

the horrible truth about the Bush/Enron administration
is as yet waiting to see the light of day.

Posted by: mikepiedmont | February 2, 2009 12:42 PM | Report abuse

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