Rep. John Conyers Jr.'s decision to subpoena Karl Rove to testify about the "politicization" of the Bush Justice Department has dumped a thorny legal question in the laps of President Barack Obama's White House lawyers before they've even had time to settle into their new jobs.
Conyers, the chairman of the House Judiciary Committee, had a subpoena served on Rove on Tuesday. Rove's attorney, Robert Luskin, immediately forwarded the subpoena to White House counsel Greg Craig for guidance on how the Obama administration wants Rove to respond.
Former President George W. Bush maintained that senior White House aides had enjoyed "absolute immunity" from congressional subpoenas. As a result, the Bush Justice Department refused to seek criminal contempt charges for executive branch officials who failed to answer demands from Congress.
During the presidential campaign, Obama indicated that he rejected Bush's take on absolute immunity as a general matter. Craig promised that an Obama White House would "be much more transparent than" the Bush administration had been in dealing with Congress - and added that Bush White House officials did not pay "adequate deference to either the House or Senate."
But now Obama administration lawyers will have to confront the question in the specific context of the Judiciary investigation into Bush's Justice Department. And as much as some Democrats would like to see Rove forced to testify, they're also aware that Republicans could someday retake control of the House or Senate - and that Obama administration officials could then be on the receiving end of congressional subpoenas.
"This wasn't a fight they wanted right now, that's for sure," a Democratic lawmaker said of the White House legal team.
Conyers was unapologetic in an interview with Politico Tuesday.
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Although a Democratic insider told Politico that White House officials were warned that the subpoena was coming, Conyers said he didn't tell House Speaker Nancy Pelosi that he was about to issue it.
"I don't do heads-ups," Conyers said.
A senior Pelosi aide said the speaker "totally supports" Conyers' attempt to get to the bottom of the Justice Department's 2006 firing of U.S. attorneys, the dispute that first led a battle over congressional subpoenas between the Bush White House and Capitol Hill.
"We're authorized to do it; it's in the rules," Conyers said. "No. 2, all they have to do is show up and talk to me. If you don't, the question is what we do about it. But why anticipate problems until we arrive at them?"
The rules package adopted by the House on the first day of the 111th Congress authorized the Judiciary Committee to continue pursuit of a civil lawsuit against former White House counsel Harriet Miers and former White House chief of staff Josh Bolten over the extent of executive privilege in such inter-branch fights. A federal judge ruled for the Judiciary Committee last year, but the Bush White House appealed the ruling. Oral arguments in that case are not scheduled until May.
The Rove subpoena demands a response by Feb. 2, but neither side expects the issue to be resolved that quickly.