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.