02/28/2009 05:12 am ET Updated May 25, 2011

Rove's Executive Privilege Claims Don't Pass the Laugh Test

A small coup for the Huffington Post: On these pages, way back in November, the very high likelihood was raised that Karl Rove's Executive Privilege claims would vanish when Bush left office. ("Karl Rove's Executive Privilege Claims May Vanish on January 20, 2009", November 10, 2008), and trigger exactly the events that have occurred.

Rove's attorney, Robert Luskin, has submitted to WH Counsel, Greg Craig, the subpoena issued to Rove by the Chairman John Conyers' House Judiciary Committee. Supremely wise, Craig will not address the issue of a past-President's Executive Privilege, leaving that to the Courts. As indicated in the above article, the most delicious irony is that George W Bush provided the only precedent on Executive Privilege from the grave, suggesting it does not exist when he, not Bill Clinton, invoked it to prevent some Clinton officials from testifying in front of a (Republican) Congress.

As also explained in the above article, it is impossible for Mr. Craig to evaluate Rove's specific claim for Executive Privilege without getting all the facts from Rove, from Bush and from Gonzales. What, if anything, did Rove discuss with Bush? With Cheney? What is the White House political advisor doing becoming involved in matters of justice? Who was the liaison between the White House and Justice Department that conveyed the White House views? What did Karl Rove have to do with the prosecution of Donald Seligman, the Governor of Alabama?

Thus, Rove must tell Craig the details Congress seeks in order to have a prayer of Obama invoking Executive Privilege because, for starters, there have to have been some discussions Rove had about the subjects to protect. But, Obama will probably not sully his hands in Rove's case regardless of what he tells Craig. Thus, Rove will not tell Craig anything, and Craig will have no basis for advising Obama to assert the Privilege. Hence, Rove will have to testify or face contempt-of-Congress that an Obama Justice Department cannot shrink from prosecuting as the obsequious Mukasey did.

Luskin has ludicrously suggested that Obama "negotiate" with Bush on Rove's testimony. Again, the supremely wise Craig will spend most of his energy suppressing his laugh.

One tantalizing question Chairman Conyers should ask Rove when he comes to testify: "Did George Bush issue you a pardon?" [It is very possible that Bush issued a host of pardons secretly. Because no action--such as release from prison or halting prosecution--is necessary for a pardon of those not (yet) indicted, it is possible that Bush issued pardons to members of his staff like Rove and never announced it].