Bush claims executive privilege in U.S. attorney probe

McClatchy NewspapersJune 28, 2007 


Former White House counsel Harriet Miers (Chuck Kennedy/MCT)


WASHINGTON — President Bush asserted executive privilege Thursday, refusing to comply with a congressional subpoena for White House documents in the investigation into last year's firings of U.S. attorneys and the politicization of the Justice Department.

Bush also would invoke privilege to block Congress from compelling testimony from his political adviser Karl Rove, Rove's former aide Sara Taylor, former White House counsel Harriet Miers and other current and former aides involved in personnel decisions at the Justice Department, said a senior aide to the president, who declined to be identified as a condition of the briefing.

That stance, which could foreshadow how the administration handles other subpoenas from the Democratic-led Congress on subjects such as a controversial spying program, dares lawmakers to back down or risk a complex and perhaps lengthy court fight.

On the flip side, Bush risks having Congress begin contempt proceedings against his aides.

In a letter to the chairmen of the House and Senate Judiciary committees, White House Counsel Fred Fielding said Bush's response "is not designed to shield information in a particular situation" but to protect his and future presidents' prerogatives.

"Presidents would not be able to fulfill their responsibilities if their advisors — on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress — were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions."

While legislative leaders didn't announce their next steps, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called the president's position "Nixonian stonewalling" and added, "In America, no one is above law."

Rep. John Conyers, D-Mich., the chairman of the House Judiciary panel, said the White House was showing "appalling disregard for the right of the people to know what is going on in their government."

Sen. Arlen Specter of Pennsylvania, the top Republican on Leahy's panel and a sharp critic of Attorney General Alberto Gonzales, urged his colleagues to reconsider.

He proposed trying to resurrect Bush's initial offer, which lawmakers rejected months ago, of having some White House aides give limited interviews to Congress behind closed doors with no transcripts. That wouldn't preclude issuing subpoenas later.

"This investigation is lagging very badly," Specter said. "We're doing a lot of wheel-spinning."

Despite a five-month investigation, testimony from Gonzales and his top deputies and the review of thousands of pages of Justice Department documents, lawmakers still don't know who decided to fire nine U.S. attorneys last year and don't have proof that the firings were connected to individuals' service in battleground election states or were related to decisions not to charge Democrats with voter fraud or to open investigations of Republicans.

Specter, a former prosecutor, dismissed the idea that a court battle could force the White House to produce documents or testimony within months.

"You wait. You have an appeal. You file more briefs. You have an appeal. You wait," he said.

"If I have to go to court for two years, I'd rather have the conversation without a transcript. We ought to take what information we can get now and try to wind this up."

Mark J. Rozell, a political science professor at George Mason University, said presidents historically had put up a fuss and exerted executive privilege only to reach some sort of accommodation with Congress.

That's what happened with Bush's first assertion of executive privilege in 2001. He instructed then-Attorney General John Ashcroft not to give the Republican-led Congress old prosecutorial records related to the Clinton administration and to alleged FBI corruption dating to the 1960s. The standoff ended months later when the administration turned over some of the documents.

But Rozell said Bush might decide to dig in this time.

With low popularity ratings, time running out on his presidency with no anointed successor and a penchant for secrecy, "It's a nothing-to-lose presidency at this point," said Rozell, the author of "Executive Privilege: The Dilemma of Secrecy and Democratic Accountability."

"Bush lacks the kind of incentives that other presidents had to accommodate," Rozell said.

As for the impact of Bush's action Thursday on the congressional investigation into the Justice Department, Rozell said: "Clearly the president is trying to stall or shut down access to critical information that Congress feels it needs. For now, it slows the investigation and puts the two branches on a collision course constitutionally."

In a letter to the president that also was submitted to Congress, Solicitor General Paul D. Clement said a congressional committee "may not overcome an assertion of executive privilege unless it establishes that the documents and information are 'demonstrably critical to the responsible fulfillment of the Committee's functions.' "

Congress has cited contempt against 10 Cabinet-level or senior officials since 1975 for failing to comply with subpoenas, but in each case at least some demands were met, staving off criminal proceedings. Those officials included a former White House counsel, two attorneys general and a secretary of state.

McClatchy Newspapers 2007

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