But the power shift in Washington is also giving Congress an opening to dig into political controversies of the past – a move that Mr. Obama, both as candidate and president, said he would rather avoid. Exhibit A is the congressional subpoena for former Bush adviser Karl Rove, issued on Monday.
“Change has come to Washington, and I hope Karl Rove is ready for it,” said Rep. John Conyers (D) of Mich., who chairs the House Judiciary panel that issued the subpoena. “After two years of stonewalling, it’s time for him to talk.”
At issue is whether presidential advisers can be compelled to testify before Congress. Chairman Conyers wants Mr. Rove to appear before his panel to answer questions on the 2006 firings of US attorneys, prosecution of former Alabama Gov. Don Siegelman (D), and “politicization of the Department of Justice.”
The panel also wants the Obama administration to release relevant documents from the Bush administration bearing on these issues.
The legal issues for the new administration are highly controversial, but both the White House and the Democrat-controlled Congress have laid the groundwork for a shift in policy from the Bush administration over executive privilege, which was frequently invoked in the Bush years in clashes with the Congress.
On Day 1 of the new Congress, the House passed a new rules package that included renewal of a lawsuit against Bush administration officials who refused to testify before a House panel investigating dismissals of the US attorneys.
On Day 1 of the new administration, Obama reversed an executive order by President Bush that allowed former presidents and their descendents to indefinitely block the release of their papers. That order leaves the decisions over whether or not to release documents with Obama.
Commenting on this week’s subpoena, Rove’s attorney, Robert Luskin, says that the issue of executive privilege is not Rove’s to resolve.
“He has previously been directed by President Bush not to appear and to assert the president’s claim of executive privilege. And that direction was reiterated by the [Bush-appointed] White House counsel in mid-January,” said Mr. Luskin, a partner with Patton Boggs LLP in Washington.
“We will consult with the new counsel to the president and see if they have any differing advice and, if so, how any differences should be addressed,” he added. “If there’s a reversal of that, and if there is some legal issue over the right to exert executive privilege, they are difficult and interesting legal issues but they’re not Mr. Rove’s.”
The issue reopens some of the most toxic debates of the Bush years, especially over whether the former president abused power and politicized the Justice Department. At a time when the new president is looking for bipartisan support on a broad range of issues, especially the economy, it sends the wrong message, Republicans say.
“No good purpose is served by persecuting those who served in the previous administration. President Obama promised to usher in an era of change and bipartisan harmony. Unfortunately, the continued effort by some Democrats to malign former Bush administration officials is politics as usual,” says Rep. Lamar Smith (R) of Texas, the top Republican on the House Judiciary panel.
House Speaker Nancy Pelosi signaled that the new Congress would look forward, not backward. But she has also committed to defending congressional prerogatives to conduct oversight and investigation.
“Congress does have constitutional authority and will exercise that authority whenever appropriate,” said Pelosi spokesman Nadeam Elshami. “But she said on her first day as speaker that we have to look forward, not backward, which is what the American people want us to do.”
So far, the Obama administration has not commented on how it will interpret issues of executive privilege affecting the previous administration.
“Certainly the rule of law is something that’s very important to this president, as is the pursuit of justice of those who have been wronged. But with a huge crisis and two wars, it’s not a top priority of his to start out by looking over what happened in the last administration,” says an administration official not authorized to speak for attribution.
Obama’s early decisions on the exercise of executive power will be among the closest watched of his presidency.
“This case exemplifies the tension he now faces. The day after huge layoffs by most of the major businesses in the country, he’s meeting with Republicans trying to win their support for an economic stimulus bill, while across the aisle, Democrats in Congress have just subpoenaed one of the major figures of the Bush administration for what could be a serious investigation,” says Julian Zelizer, a congressional historian at Princeton University. “The clash between dealing with anger of the past and the need to focus on the future is now front and center in the early part of his presidency.”