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Newsweek Obtains Letter From Bush Lawyer, Asserting Retroactive Privilege
Newsweek's Michael Isikoff has obtained the letter sent by White House counsel Fred Fielding to Karl Rove's lawyer Robert Luskin, just a few days before Bush left office, instructing Luskin that Rove "should not appear before Congress" in response to any subpoenas issued. The letter makes clear that Bush is continuing to assert a retrospective executive privilege over his White House years.
The Wall Street Journal had reported the existence of the letter -- which makes clear the lengths to wish the former president is wiling to go to keep a lid on what happened inside his White House -- earlier this week.
Earlier this week, the House Judiciary Committee issued a subpoena to Rove, ordering him to testify February 2 about the US Attorney firings, and the prosecution of ex Alabama governor Don Siegelman. Luskin told us he had forwarded the subpoena to the Obama White House, which must decide whether to back Bush's claim of retroactive privilege. If it doesn't, but Bush continues to assert it -- which it would appear from the letter he will -- the matter looks headed for the courts. There is no settled legal precedent to guide how a court might rule.
The Obama White House told Newsweek it's still studying the issue.
Fielding also sent a near identical letter to former White House counsel Harriet Miers, instructing her not to appear for a scheduled deposition in front of the Judiciary committee. The issue of whether Miers and another Bush White House aide, Josh Bolten, can testify is currently the subject of a court fight between the committee and the Bush White House.
The Obama White House is scheduled to file a brief in that case by February 18, in which it may make clear whether or not it intends to back Bush's executive privilege claim.
Josh
Zachary
This will go all the way to the Supreme Court, and then it will all come down to Justice Kennedy.
January 30, 2009 10:07 AM | Reply | Permalink
There is no reason why it should go to the supreme court since the extensive version of executive privilege they are asserting was shot down in the United States vs. Nixon by unanimous decision. If the subpoena is about criminal activity then executive privilege does not apply.
January 30, 2009 10:22 AM | Reply | Permalink
Spot-on.
I doubt the Bush court would even let this hit their altar. It will be decided in lower courts, and not in favor of this Bush/Rove revisionist law.
What I am beginning to wonder is just what does Bush himself have to hide?
By "executing" this order, he puts himsoelf up for scrutiny and specualtion that he is fearful Rove's apres-Bush testimony might get him tossed in the pokey.
Wouldn't it be ironic if Bush and rove and Cheney had to go to Leavenworth about the same time the terrorists get there?
Seriously, why would Bush tell Rove to break the law, unless he's got something BIG to hide?
My tinfoil deerstalker is tingling aplenty...
January 30, 2009 11:51 AM | Reply | Permalink
Well, as you know, the Supreme Court can reverse itself (and has done so many times) although theoretically it hesitates to do that.
That smart-aleck Alito has long harbored imaginative novations as to the expansiveness of Presidential power. He'll double-talk the issue when asked, but this is where his heart is. It's no stretch to imagine adding the reactionary signatures of Scalia and Thomas. Then, if they can get Roberts, yeah, it comes down to drama-queen Kennedy.
Not saying this is likely, but it is isn't far-fetched to me, either, especially Alito's mischief.
January 30, 2009 12:32 PM | Reply | Permalink
This guy is delusional! Sorry "Mr. President", but that title is just a courtesy now.
January 30, 2009 10:44 AM | Reply | Permalink
I'm waiting for Bush to start issuing retroactive signing statements. Congress passes a bill, Obama signs it, and then Bush issues a statement directing the executive branch to give it a certain interpretation.
January 30, 2009 12:55 PM | Reply | Permalink
This is precisely why no court should EVER rule that Bush maintains Executive Privilege. I shudder to think of all the ways Bush and his cronies would abuse the law, then argue in court about "precedent." Crazy.
January 31, 2009 4:20 PM | Reply | Permalink
"Retroactive Privilege?" Oh, please! I am looking forward to the Obama Administration's brief on February 18.
January 30, 2009 10:44 AM | Reply | Permalink
Doesn't the definition of private communications being claimed need to determined? As I recall, Bush wasn't involved in the Rove and Miers and Bolton conversations. This, if left unchallenged, would mean any conversation between 2 or more people in the WH could be claimed under executive privilege.
January 30, 2009 11:08 AM | Reply | Permalink
"Bush wasn't involved in the Rove and Miers and Bolton conversations."
Recent evidence indicates that was another lie.
This desperate post-Presidential maneuvering suggests that Bush may very well have been intimately involved in those discussions, or he would not have instructed Rove to break the law the way he has, especially this time around when there's no Bush in office to save his sorry arse.
PS, thanx for the spell-check, Josh, I'll try to take advantage of it...
Good, also to see you got the word "Obama" into the TPM dictionary, I got a chuckle out of it being underlined at first.
But "TPM" still gets red-lined, you might want to add your own acronym to the dictionary.
January 30, 2009 12:17 PM | Reply | Permalink
In related news....what ever happened to the issue about zillions of White House emails being sent (illegally) on Republican Party email instead of the federal govenment system, and then conveniently lost somehow?
January 30, 2009 11:15 AM | Reply | Permalink
It is amazing that Mr. Bush is still trying to keep the facts from coming out. He should realize that Americans will conclude that either he is covering up skulduggery or he has a huge ego problem and he does not believe that the government apparatus is no longer his to boss around OR he is covering criminal activities by this silly claim of executive privilege. Bush needs to understand that an old saying of my mom's first response when she knew we as children were stretching the truth, made it clear that she felt we were telling a lie to cover our tracks. GW's mother no doubt failed to instill the idea of truth-telling into her son. And all America is the worse for his 8 year lack of candor and truth-telling.
February 1, 2009 12:34 AM | Reply | Permalink
And what next? Retroactive power to start wars? Retroactive power to torture from his ranch in Texas? Retroactive power to arrest any American citizen he feels like?
January 30, 2009 11:24 AM | Reply | Permalink
Maybe there's a "Lone Star" clause somewhere in the constitution that gives former Texans who were once President executive authority, ad infinitum?
January 30, 2009 12:09 PM | Reply | Permalink
"the lengths to wish the former president " needs to be fixed, as do both Rove and Bush.
Hey, MODERATORS? How about a viewable file with the allowable HTML tags in it? That would be nice. And can you blow off Renaye? She's a buzzkill.
January 30, 2009 11:26 AM | Reply | Permalink
Blamb;
at the top right of this blog is a little link labeled "send comments and newstips".
Like most of us, I have spotted typos occasionally, but don't embarass folks by commenting on it in the comments section. just click that link above and send ti directly to them, they tend to respond immediately, they don't want typos any more than you do.
Just a friendly suggestion.
January 30, 2009 11:37 AM | Reply | Permalink
PS;
I agree Renaye's a tr5oll, but gosh, they all disappeared (Des is BACK, though) after the election so humiliated them all.
Seriously, her political bent is so twisted, we need her input just as a crazy gauge to measure our own sanity.
And she's probably a bona fide Palin promoter, I would bet on it, so it would be nice to hear from those nuttiest of the wingnuts now and then. If for no other reason, so we know what their latest meme is, sent down from the new Chief Republican at large, (Large is an understatement, FAT SLOB might be a better term) Rush "I'm Right" Limbaugh.
January 30, 2009 11:44 AM | Reply | Permalink
Show me the precedent that allows Bu$h to assert retroactive executive privilege over and above the current President.
January 30, 2009 11:32 AM | Reply | Permalink
Even from his grave, Bush will be trying to promote this type of Precedent...
January 30, 2009 11:38 AM | Reply | Permalink
One can only hope Obama's legal eagles will be all over it and demanding Bu$h to explain himself. Especially since he no longer has standing to make such assertions. I can't see SCOTUS getting involved because its an issue of interpretation of Constitutional rights and duties between a sitting President and past President. That means Bu$h will have to tell Obama why its so important they not talk. Then Obama will have to decide if executive privilege should be extended.
January 30, 2009 11:49 AM | Reply | Permalink
Following that, let's say Obama doesn't extend the executive privilige in the manner you indicate.
What does Bush then do, say, "Okay, I win some and I lose some?" His puppeteer Cheney will instantly be on the blower to him, "This is the time for you to be strong, Mr. President," etc.
January 30, 2009 12:39 PM | Reply | Permalink
Yes if they allow Bush to do it, what is to stop Clinton from doing the same. Eventually we would have many folks acting like they are still presidents, but how nice if by their behavior, Clinton could put the breaks on any request for any information from his stint in the Whitehouse. Not that he would, but that alone is enough to give pause to the Supremes that Bush appointed. I can just imagine now, Scalia messing all over himself if that were to happen.
February 1, 2009 12:40 AM | Reply | Permalink
From the grave, Cheney will be hectoring Bush to do just that. "This one is just really important, Mr. President," etc.
January 30, 2009 12:22 PM | Reply | Permalink
Wait -- I thought Cheney was already dead. He's just a brain-eating zombie, right?
January 30, 2009 1:39 PM | Reply | Permalink
James Buchanan (now overtaken by Bush in battle for worst U.S. President?) would appear from time to time after his disgraced term in office to proclaim he would yet be vindicated. So he went to his grave, and the vindicators have not yet met a persuasive case for him, and historians in 2006 voted his determination not to fight secession as the worst Presidential decision ever. http://en.wikipedia.org/wiki/James_Buchanan On his deathbed, he declared that history would vindicate him despite all these bad feelings.
So it will be with Cheney. Whatever comes out about his most extreme excesses (and there will be a lot), he'll always be (or seem) unfazed. A heroic genius, knowing so much more than we, and ready to break a whole lotta china and rip up the Constitution to see his will be done.
January 30, 2009 2:13 PM | Reply | Permalink
Question for those more knowledgeable than I...
Are the taxpayers going to be on the hook for paying any of these clowns legal costs when and if it comes to legal proceedings, congressional hearings, etc.
After all, they were all layed off on Jan 20th, weren't they?
(I have my belief... hope I'm wrong)
January 30, 2009 11:45 AM | Reply | Permalink
I think the DoJ can pull out if they think the case is too weak to defend - they're not obligated to defend if they don't see it winable
January 30, 2009 11:53 AM | Reply | Permalink
Can't answer your question, but it does bring to mind that one segment of our economy is doing well; political-crime defense lawyers are doing a bang-up bizniss, all due to the Bush administration.
In every yang there's a spot of yin...
January 30, 2009 12:05 PM | Reply | Permalink
JEP07:
Turn your 'tinfoil deerstalker' down to a simmer. The Bush/Cheney/Addington view of transparency dictates that ALL attempts at compelling the production of documents or testimony is met with a resounding FU.
Could we please have the records of energy task force meetings? FU. Testimony on deliberations regarding US attorney firings? FU. The administration's stance on whether the sky is, in fact, blue? FU.
While I'm with you that there's plenty to hide here, suspecting that this one is 'something BIG' sounds like what a mouse might say at an elephant convention :D Here's hoping we see some retroactive transparency.
On a related note, nerox3 sites US v Nixon as a precedent on the retroactive privilege issue, while the hon. Mr Roth states that "There is no settled legal precedent to guide how a court might rule". Any ideas on whether US v N carries weight here?
January 30, 2009 12:29 PM | Reply | Permalink
All legal precedent carries weight, and every court in the land is required to regard it. Just because the Bush Court defies these standards (they actually admitted it in Bush V. Gore) doesn't mean those standards no longer stand.
January 30, 2009 1:43 PM | Reply | Permalink
I beat you on this one last night.
More reaction from Scott Horton, Don Siegelman and MSNBC videos here on The Locust Fork News-Journal site, LocustFork.Net.
January 30, 2009 1:36 PM | Reply | Permalink
...ponder for a moment the ongoing story that Bush was not involved in those discussions, and therefore executive privelege may not apply.
Then ponder that Bush was actually involved in those discussions ('something BIG') which means that while he was our sitting President, because he was involved in those discussions, executive privilege was legitimate at that time.
But by invoking that privilege, NOW, after his authority has expired along with his term, he admits he was actually involved.
There's the legal catch 22; if Bush actually took part in either the conspiracy to politicize the DOJ OR discussions to legitimize torture, then he's potentially facing criminal charges, now that he is no longer President.
War Crimes charges for using torture, which our own laws and international law deems illegal, and conspiracy charges for contributing personally to the planned DOJ firings...
His only way out now is hoping the new government will somehow feel intimidated enough (how many Senate and House secrets did the NSA's TIA program uncover for him?) to protect him retroactively.
My deerstalker was tingling about the catch 22 he's trapped in, if he claims executive privilege at this juncture, that may very well mean he's admitting to guilt.
January 30, 2009 1:38 PM | Reply | Permalink
I know nothing of the law, but I have a practical question. Doesn't it behoove Bush & Co. To keep
Rove happy? They really can't lean on him now so shouldn't they be offering him prestigious and lucrative assignments to keep him quiet? If (big IF) they feds flip Rove with a blanket immunity offer doesn't the whole Bush S**t house go up in flames???
January 30, 2009 2:21 PM | Reply | Permalink
Executive privilege is not about the man but about the office.
That means that the privilege if any transfers to the next President. Bush cannot be compelled to testify against himself, nor can Rove. A proper (not excessive) grant of limited immunity removes this obstacle. Obama needs to look at the large picture, in terms of precedents both past and with respect to the future.
Contempt of Congress should be dealt with effectively and swiftly (months not years lag). I don't see anyone having a leg to stand on unless the current Executive decides to aid and abet a cover-up.
January 30, 2009 2:50 PM | Reply | Permalink
Rove's job was to be the President's political advisor (no more, no less). He had no business being involved in any way in Dept of Justice oversight of U.S. Attorneys, and certainly not in the prosecution of a criminal case.
The letter to Luskin does not reference the Don
Siegelman case, only the U.S. Attorney firings. Why not just subpoena Rove separately on each topic and argue that the litigation over executive privilege does not apply in the Siegelman probe, because it has not been asserted? Limit testimony, for now, to Rove's role in the Siegelman case and expect him to appear.
If Rove had any involvement whatsoever in the Siegelman prosecution, he is in deep trouble. If he advised the President on the case, well, that's enough in itself to get Siegelman a mistrial.
January 30, 2009 2:55 PM | Reply | Permalink
Nice if limited tactical move!
January 30, 2009 3:31 PM | Reply | Permalink
I'm with Garfield. Since when did private citizens get to block subpoenas?
January 30, 2009 8:56 PM | Reply | Permalink
Bush and Crime Family have not left the WHITE HOUSE, he is still Running Obama White House he still is the DECIDER, Rove(TURD BLOSSOM) will walk FREE. For one the CORPORATE CONTROLED MEDIA, has all of Bush's Crime Family Back. Second Pelosi and Reid have no GUTS, all I heare from them is it is time to move on.
January 31, 2009 2:36 AM | Reply | Permalink
No sweeter sound than the "Click..Click..Click" of the US Marshall handcuffs going around Rove's skinny, pale wrists as he's perp-walked out of his hiding place...
January 31, 2009 8:39 PM | Reply | Permalink