White House, Congress clashes could get bumpy

McClatchy NewspapersJune 21, 2007 

WASHINGTON — President Bush and the Democratic-led Congress are on a collision course over White House secrets, a sensitive conflict that's as old as the country itself.

Bush has invoked his war on terrorism to claim unprecedented and virtually unlimited executive powers, unchecked by Congress, the courts and at times even the Constitution.

He's declared that he's free to interpret or ignore laws as he chooses. He's refused to hand over his aides' e-mails to congressional investigators and has declined to let administration officials testify to congressional committees. He nearly provoked a mutiny in his Justice Department by asserting a right to spy on Americans without first getting warrants.

On Thursday, lawmakers revealed that Vice President Dick Cheney has refused to let the government's own Information Security Oversight Office inspect his office for a security audit. Cheney, a champion of vast executive authority, said his office is "not an entity within the executive branch." When the oversight office persisted, said Rep. Henry Waxman, D-Calif., Cheney's staffers tried to eliminate its funding.

Even the 4th U.S. Circuit Court of Appeals, arguably the nation's most conservative, balked last week at Bush's claim that he has the "inherent constitutional authority" to declare suspected terrorists "enemy combatants" and imprison them indefinitely. "The president," the court said, "claims power that far exceeds that granted him by the Constitution."

Now, in this stormy environment, the White House faces a June 28 deadline for responding to congressional subpoenas concerning the firings of nine U.S. attorneys last year. On Thursday, congressional investigators approved new subpoenas over the president's warrantless spying program. Also on Thursday, Congress ratcheted up pressure on Cheney over his claim that he isn't subject to the rules that protect classified information.

Negotiations could resolve the conflicts. That often happens. If it doesn't, batten down the hatches. Things will get bumpy.

So far, Bush appears unrelenting. He's reinforced his White House counsel's office with new hires, as if he's preparing to fight.

"My guess is they will fight this," said Rep. Adam Schiff, a California Democrat who serves on the House Judiciary Committee. "I hope that I'm wrong, that they see the better part of valor and are willing to compromise."

With Thursday's Senate Judiciary Committee action approving subpoenas related to Bush's warrantless wiretap program, congressional Democrats now have hit the administration with more than two dozen subpoenas.

Unless some compromise is reached, the courts are the next stop in what probably will become a constitutional crisis.

"It all depends on how far the Democrats want to take it," said Rep. Dan Lungren, a California Republican and a Judiciary panel member.

The clash between a willful executive and an aggressive legislature reaches deep inside the White House.

As part of their investigation into the firings of nine U.S. attorneys, the House of Representatives and Senate Judiciary committees want the testimony of former White House counsel Harriet Miers and former deputy political director Sara Taylor. They've been called to testify in mid-July.

The committees also seek thousands of documents. Republicans call this a fishing expedition. Democrats say they need to know all the facts.

Undeniably, the subpoenas issued June 13 cast a wide net. Among other things, they demand: "Agreements, contracts, letters or other correspondence, facsimile or e-mail transmissions, telephone messages, logs or records, memoranda, notes, diaries, graphs, formulas, models, bulletins, computer printouts, transcripts, analyses, returns."

Then again, Congress always wants documents. White Houses never want to give up records. This inherent tension plays itself out, repeatedly, when lawmakers demand to know more about internal White House decision-making.

"That question must be a matter purely between the president and the agent, not examinable by the legislature," a top administration official once said.

The top official: Alexander Hamilton, George Washington's pugnacious treasury secretary. In the 1790s, Congress wanted Hamilton to explain directions Washington had given concerning the deposit of funds in the Bank of the United States.

Forget it, Hamilton replied. Congress, however, rejected Hamilton's claim that an executive privilege shielded the White House deliberations from outside scrutiny. Hamilton eventually provided the information.

"You go back and look at all of these conflicts," Lungren said, "and they usually end up being resolved at the last minute."

In December 2001, for instance, Bush declared executive privilege for the first time when he denied a House committee's subpoena for information regarding alleged FBI corruption in Boston. By February 2002, the White House turned over the memos that Congress sought.

The White House's most current offer is to make Miers available for a private interview, which would neither be recorded, transcribed nor conducted under oath.

"I think the administration's position is legally untenable," said Rep. Howard Berman, a California Democrat who serves on the House Judiciary Committee. "They are trying to create an inviolate privilege."

The Constitution doesn't include the phrase "executive privilege." Nonetheless, the Supreme Court noted in 1974 that executive privilege is "fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."

The privilege comes in different forms. Military and national security matters, in particular, are treated with kid gloves.

A Civil War spy, for instance, tried to obtain his secret contract with Abraham Lincoln. The Supreme Court said in 1875 that he couldn't. The widows of three civilian B-29 crewmen tried to obtain records of the Cold War accident that killed their husbands. The Supreme Court said in 1953 that they couldn't.

Courts also have recognized a "deliberative process" privilege that protects internal executive-branch debates.

This can be overcome if a judge determines that the subpoenaed material is essential to an investigation. This happened in 1974, when the Supreme Court ordered President Nixon to turn over secret White House tapes in response to a special prosecutor's subpoena. He complied, then resigned.

"The generalized interest in confidentiality must yield to the demonstrated, specific need for evidence in a pending criminal trial," the court ruled unanimously.

Note the word: criminal. The legal balance might turn out differently for a purely civil investigation.

None of the current Supreme Court justices was on the bench in 1974. When Justice Samuel Alito was asked about the matter at his Senate confirmation hearing, he agreed that the 1974 court had ruled correctly in rejecting Nixon's privilege claims.

"When situations like that come up, it is the responsibility of the judiciary to hold fast," Alito testified.

His answer, though, didn't soothe senators who were leery of his overall support for a powerful executive branch. This will matter if the subpoena fight becomes Congress v. Bush in the courts.

Alito and some fellow conservatives have championed the theory of the "unified executive." This envisions the president, particularly in wartime, as having maximum power; including, as Alito once said, "the last word on questions of (legal) interpretation."

Chief Justice John G. Roberts has likewise stressed executive authority during wartime. It's an expansive authority that Bush has expressed in different ways.

For instance, Bush uses "signing statements" that qualify his support for bills that he signs into law. These statements have impact. Of 19 provisions that Bush identified in signing statements last year and the Government Accountability Office examined, six weren't implemented as Congress intended.

This expansive concept of presidential clout is balanced against the entrenched Washington urge to compromise.

"In situations such as this one, each branch has an obligation to seek an accommodation of the other's interests," White House Counsel Fred Fielding wrote June 7.

Fielding himself served in Nixon's White House, though he left two years before the Supreme Court rejected Nixon's executive-privilege claims.

Earlier this month, Fielding hired nine more lawyers for the White House counsel's office. There are now 22 lawyers in the office.

"It gives the appearance of a siege mentality, like they're digging in for a long fight," Schiff said.

McClatchy Newspapers 2007

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