If it were a lawsuit, it might be called Obama v. Bush, Rove, et al., and it would be billed as a major case on Executive Privilege. Though the legal arguments would be arcane, the underlying issue would be -- and already is -- filled with political intrigue about who did what to fire whom back in 2006 at the Justice Dept. Supreme Court or no, the issue puts Obama in a legal and political pickle. He'd rather move ahead and beyond the Bush years and aging Justice Department scandals that have nothing to do with him, but he has to take a position, and what he decides could affect his and future administration for years to come.
Obama must soon decide whether to support President Bush's claim of executive privilege in shielding his powerful political adviser Karl Rove from testifying before the House Judiciary Committee. Democrats want to question him on the extent of White House involvement in the 2006 firing of nine U.S. attorneys, allegedly for political reasons because of the cases they were or were not pursuing. The scandal led to a shake-up at Justice and was considered one of the primary reasons behind the resignation of Attorney General Alberto Gonzales in August 2007.
Bush claimed "absolute immunity" in blocking Rove from appearing after being subpoenaed by House Judiciary Committee Chairman John Conyers, a Democrat from Michigan, who then filed a lawsuit now in a federal appeals court. Obama is expected to file a motion in a week or so to explain his policy on presidential executive privilege and the Rove case in particular.
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House Speaker Nancy Pelosi, Conyers and many on the left are eager to see Rove grilled in committee testimony under oath, but Obama is eager to move on from the Bush era, especially with so much on his plate already and his desire to keep the focus on economic recovery and not on past partisan battles.
The presidential privilege question also comes in the wake of criticism about Obama's decision upon taking office to possibly allow some types of terrorist interrogation and detention techniques that are not included in the Army Field manual, another issue that has rankled some supporters. So, too, will his decision, expected to be announced Friday, to leave 50,000 residual troops in Iraq after 2010 and possibly for years, something far short of a full withdrawal that many of his anti-war supporters want.
In regard to Rove, one problem for Obama is his stated desire to bring much more transparency to government. He has already issued an executive order to ease release of presidential records and other information. The executive order also states that in cases where executive privilege is asserted by the Obama White House, the U.S. attorney general will have review authority -- a change from the policy under Bush. The order does not specifically address how senior staff are to be treated when facing a congressional subpoena, though.
Obama has to be considering this carefully. Stating officially that Rove should testify could set precedent for him in his entire presidency, affecting his senior staff aides and their ability to work and consult in confidence. It could also weaken the stronger presidential powers that Bush and Vice President Dick Cheney sought to restore.
What to do with Rove is not Obama's only thorny executive privilege issue at hand. Democratic Sen. Robert Byrd of West Virginia, a veteran protector of Senate rights and a Constitutional scholar, wrote to Obama on Feb. 25 to complain about the number of White House policy "czars," including those energy, housing and climate change policy, saying they should not have power to decide or direct policy since they are not in positions confirmed by the Senate. Such special policy czars often operate in secret, rarely testify and inhibit openness and transparency, Byrd said.
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