Waiting for Rove

By Dan Froomkin
Special to washingtonpost.com
Friday, August 1, 2008; 12:33 PM

How long until former White House political guru Karl Rove is forced to answer to Congress?

Yesterday's landmark judicial opinion rejecting the White House claim that presidential aides are immune from congressional oversight has energized Democratic leaders, who are now demanding that top Bush advisers appear at congressional hearings as early as next month.

But the Bush White House has proved masterful at stalling. And if it succeeds at running out the clock, it may be the next president who must decide whether this one's aides are called to account.

U.S. District Court Judge John D. Bates yesterday ordered Harriet Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, to cooperate with the House Judiciary Committee's investigation into the politicization of the Justice Department, including the mass firings of U.S. attorneys in 2006. Rove has cited the same no-longer-operative excuse to defy congressional subpoenas. (See yesterday's column for more on the court ruling.)

Richard B. Schmitt writes in the Los Angeles Times: "Democrats said Bates' 93-page ruling vindicated their dogged efforts to check potential abuses under Bush, and tentatively set hearings for September. They said they expected White House officials to appear then to answer questions about the controversy over the fired prosecutors, which led to the resignation of Bush confidant and former Atty. Gen. Alberto R. Gonzales last year."

But as Schmitt explains: "Bates left unresolved whether administration officials would be justified in refusing to answer specific questions under the doctrine of executive privilege.

"That question, and an anticipated White House appeal, means the controversy is likely to spill over into the next administration, where it could raise novel legal questions about whether ex-presidents have the power to assert executive privilege after they have left office. Since the subpoenas expire when the 110th Congress goes out of business in January, the incoming chamber would have to reissue them. . . .

"Bates said he hoped that lawyers for the two branches would settle the dispute and avoid further litigation. He scheduled a conference for Aug. 27 to discuss their progress.

"'The practical significance of the opinion will depend chiefly on whether the investigations persist into the next Congress and on how the new administration responds,' said Peter M. Shane, a professor at Ohio State University's law school.

"He said there might be 'interesting questions, yet presented, about the authority of an ex-president to make even qualified executive privilege claims on behalf of his former aides.' But he said that, in general, it is up to the incumbent president to decide, while in office, what is in the best interests of the executive branch as an institution."

Obviously aware that the argument could drag on beyond January, Bates noted in his opinion: "A former President may still assert executive privilege, but the claim necessarily has less force, particularly when the sitting President does not support the claim of privilege."

Del Quentin Wilber writes in The Washington Post: "The Bush administration has increasingly invoked executive privilege in its battles with Congress over documents and testimony related to issues as diverse as greenhouse gas emissions and FBI interviews of Vice President Cheney about the controversial leak of a CIA officer's identity. . . .

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