The Executive Privilege Trap

Republicans are pretty confident they've got Obama right where they want him on the issue of Karl Rove's subpoena. They are betting in a face-off between the current Congress and the Bush administration, Obama will have no choice but to side with Bush on executive privilege in order to protect his own administration from the inevitable GOP backlash down the line.

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.

The GOP is confident that Obama will leave so many loopholes in his own administration's view of executive privilege that it will be a de facto win for Rove...and for Bush.

How will Obama respond?