Dispatches from the Creation Wars

How Will Obama Go on Subpoena Case?

The D.C. Appeals Court has granted the DOJ another week’s extension to consider their response to the case involving congressional subpoenas of former Bush advisers Harriet Miers, Josh Bolten and Karl Rove. Those subpoenas came from Rep. John Conyers (D-Mich.), chairman of the House Judiciary Committee, who is intent on investigating possible wrongdoing in the firing of 9 U.S. Attorneys.

This court case is a lawsuit by Conyers seeking to force the former Bush advisers to comply with the subpoenas and testify before the committee. The Bush administration argued that none of the advisers could be forced to testify, asserting executive privilege. The district court rejected that argument, thus setting up the appeal. Now it falls on the Obama administration to decide whether to support Bush’s assertions of executive privilege or argue against them; the appeals court has now given them until March 4 to file their response briefs.

So how will Obama go on this? Given how often over the first few weeks he has maintained Bush’s legal positions on important matters, even when he has harshly criticized those positions before, one can hardly be confident that he will back off the claim of executive privilege. By doing so, he would be forfeiting the option of using such assertions of privilege himself in the future.

I frankly think he’s trying to run out the clock on this. There are ongoing negotiations between the Conyers committee and the three advisers to reach an agreement that would bring them in to testify. Such negotiations are not unusual. Miers, Bolten and Rove know that they are likely to lose this case so they have an incentive to cut the best possible deal they can to limit the scope of their testimony and the documents they have to turn over.

I suspect the Obama administration is hoping such a deal is struck before March 4 so they can avoid having to take a position on this matter.