The White House And Secrets

This post was written by CBS News Legal Analyst Andrew Cohen.

4336078Now here is a big story at the intersection of law and politics. Newsweek's Michael Isikoff reports that on January 16, 2009, just four days before the end of the Bush Presidency, White House Counsel Fred Fielding instructed former administration officials Karl Rove, Harriet Miers, and Joshua Bolten to continue to assert "executive privilege" to avoid answering questions under oath from Congress about the U.S. Attorney matter.

The extraordinary instructions — some legal experts say they were unprecedented - presage perhaps the first great constitutional challenge for the Obama Administration. That's because the House Judiciary Committee, led by the powerful and dogged John Conyers (D-Mich.), has indicated that it will continue as it has for years now to press ahead with its efforts to force Rove and Company to account for their influences on political hiring at the Justice Department.

If Conyers doesn't give in, and why would he now that he has the votes, we'll see a lawsuit in federal court seeking judicial guidance on the scope of the privilege. And if we see such a lawsuit – issue presented: may an outgoing administration block its officials from testifying for all time into the future despite a Congressional subpoena? – the Obama Administration will have to take a formal position on the issue. It simply couldn't afford to sit on the sidelines and let the other two branches of government define the breadth and width of executive privilege.

Will a White House that keeps declaring that "sunshine is the best disinfectant" be true to that word and fight against the Bush secrecy directive? Or will Team Obama back up its predecessor and argue in court that, indeed, one administration should be able to block for all time the statements made by its officials. Any legitimate court case that comes out of this dispute will be an early test of whether the new administration is willing and able to overcome historical and institutional pulls (or, as the President puts it, the "way Washington works").

And even without the "time" question here – before the courts would even get to the prospective reach of privilege – there is also the baseline question of whether the Bush Administration had the right on the merits of the doctrine of executive privilege to block the testimony of Rove and Miers and Bolten. Some legal experts like Laurence Tribe of Harvard Law School say no. I'd be interested in hearing what the Supreme Court has to say on the topic. Wouldn't you?