A Long-Lived Privilege?

The issue is likely to come to a head soon. The Justice Department is due to state its position on executive privilege to the U.S. Court of Appeals in a few weeks in response to the House's attempt to enforce its previous subpoenas for Miers and Bolten, who were subpoenaed to turn over documents relating the U.S. attorneys firings. Both refused to comply, or even show up—relying on the Bush Justice Department's sweeping position on "absolute immunity" from testifying before Congress.

Few legal observers expect the Obama Justice Department to endorse that position, but it remains an open question how the new administration will define the scope of presidential privilege. Bush's attempt to assert privilege even after he leaves office throws a new wrinkle into the dispute.

"We're in uncharted territory," Luskin said to NEWSWEEK when asked whether a former president can still assert executive privilege after he leaves office. He added that Rove has no personal objection to testifying and will cooperate with an ongoing Justice Department inquiry into the U.S. attorneys firing—although Luskin says he has not yet been contacted. (Rove is an occasional contributor to Newsweek).

A White House aide said Wednesday afternoon that Craig's office was still reviewing the issue.

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