Rove Seeks Legal Advice of Noted Constitutional Scholar

             The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2.  Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.  Obama Press Secretary Robert Gibbs says that the matter has been turned over to the White House Counsel for consideration. 

            Some have asked why Rove should be entitled to an advisory opinion from the Obama Administration on whether he must comply with a congressional subpoena.  After all, the ordinary witness does not have that option, but must choose between complying with a congressional subpoena or facing a possible criminal prosecution for contempt. 

            Rove, however, is not in the position of an ordinary witness.  The former president has directed him not to appear before Congress based on an asserted absolute immunity.  This immunity has been claimed by the Office of Legal Counsel not only in the Bush 43 Administration, but in the Clinton and previous administrations.  Moreover, there is a case currently pending before the D.C. Circuit (Miers v. House Judiciary Committee)  in which the court may rule on the existence of the immunity.  Up to this point, the Justice Department has argued in favor of the immunity in Miers, and the Obama Administration will have to decide whether to change this position.  

            Given this state of affairs, the Obama Administration has several possible responses.  First, it could tell Rove that it does not recognize the existence of the immunity.  In that case, Rove could choose to ignore this advice and refuse to testify anyway, taking the risk that he might ultimately be prosecuted for contempt of Congress.  More likely, Rove will tell former President Bush that he intends to appear unless Bush brings a legal action to vindicate the claimed immunity.  Otherwise, Rove would appear on Monday and invoke executive privilege on a question-by-question basis.  

            Second, the Obama Administration could tell Rove that it has not yet decided on what position it intends to take in the Miers case and that the matter is under review by the Department of Justice.  In addition, or in the alternative, it might tell Rove that to the extent the immunity is controlled by the current president, Obama declines to assert it.  Such a response would give Rove somewhat more cover to refuse to appear before the House Judiciary Committee.  Rove could argue to the committee that the question of whether the immunity exists is an unresolved legal question and that the committee should either bring a declaratory judgment action against him (as it did for Miers and Bolten) or should await the outcome of the case pending in the D.C. Circuit. 

            Third, the Obama Administration could tell Rove that the immunity belongs to the current president, not the former president, and inform him that Obama waives it.  I think this response is less likely than the first two.  If one accepts for sake of argument that the immunity exists in the first place (IMHO, a very dubious proposition), it would not make much sense to allow the current president to waive the immunity for aides of former presidents.  The whole idea of the immunity is that a presidential aide acts as the “alter ego” of the president for whom he or she works.  Allowing a different president to control the assertion of the immunity would be like allowing the assertion of Speech or Debate privilege for a congressional aide to be controlled by the successor to the congressman whom the aide served. 

            Finally, the Obama Administration could tell Rove that he should abide by the instructions of the former president, at least for the time being.  In that case Rove is off the hook for the moment. 

            Of course, the Obama Administration might not respond at all.  In that case, Rove and his attorney will probably construe the non-response as meaning that the current administration adheres to the previously expressed views of the Justice Department, and decline to appear on that basis.     

             My bet would be on some variant of the second response.  But we shall see.