A Long-Lived Privilege?

But it is unclear whether Rove—or Miers, who was found in contempt of Congress last year when she refused to honor an earlier subpoena—is close to doing so. Luskin said he did not solicit the letter from Fielding, but maintains that its contents give his client little choice in the matter.

Fielding's letter cited the aggressive position of the Bush Justice Department on executive-privilege issues. That doctrine essentially held that White House aides not only did not have to answer specific questions before Congress about their presidential duties, they didn't even have to show up in response to subpoenas because they had "absolute immunity."

"We anticipate that one or more committees of the United States Congress might again seek to compel Mr. Rove's appearance, testimony or documents on the subject of the U.S. attorneys matter," Fielding wrote. "Please advise Mr. Rove ... that the President continues to direct him not to provide information (whether in the form of testimony or documents) to the Congress in this matter …"

Reached Wednesday afternoon, Fielding declined to comment. But a former presidential aide, who asked not to be identified talking about sensitive matters, said that the letter to Rove was "basically the same" as the one sent to Miers (and a third letter sent to former White House chief of staff Josh Bolten). "If the president was going to assert privilege," this source said, he had to do it before he left office on Jan. 20.

Luskin said that he forwarded a copy of Fielding's letter, as well as the subpoena he got from Conyers, to Obama's White House counsel, Greg Craig, and essentially asked for the new president's position on these matters.

So far, he said, Craig hasn't responded; Luskin also says he has asked the House Judiciary Committee to postpone its deposition of Rove until he hears back. The committee has agreed to put off the deposition—but only for a few weeks.