Friday, June 29, 2007
Bush Claims Executive Privilege in U.S. Attorney Case
President Bush moved one step closer to a constitutional showdown with Democrats on Thursday, as the White House asserted executive privilege in refusing to comply with Congressional subpoenas for documents related to the dismissal of federal prosecutors.
The move prompted Democrats to accuse the White House of stonewalling, and seemed to put the legislative and executive branches on a collision course that could land them in court. It was the second time in Mr. Bush's presidency that he has formally asserted executive privilege, the power first recognized by the Supreme Court in a 1974 Watergate-era case.
On Thursday morning, the White House counsel, Fred F. Fielding, telephoned the Democratic chairmen of the House and Senate Judiciary Committees, which had issued the subpoenas, to inform them of Mr. Bush's decision. The president also intends to invoke executive privilege to prevent two of his former top aides, Harriet E. Miers, the former White House counsel, and Sara Taylor, the former political director, from testifying, officials said.
"With respect, it is with much regret that we are forced down this unfortunate path," Mr. Fielding wrote in a letter to the committee chairmen, Senator Patrick J. Leahy of Vermont and Representative John Conyers Jr. of Michigan. He said the committees had issued "unfettered requests."
Mr. Conyers, in a telephone interview, called the letter "an appalling response to a reasonable question," adding, "This is reckless; it’s a form of governmental lawlessness that is really astounding."
The letter seemed to lay the groundwork for how the administration will respond to a separate, unrelated, round of subpoenas, issued by the Senate panel Wednesday to the White House, Vice President Dick Cheney's office and the Justice Department for information about the domestic eavesdropping program run by the National Security Agency.
Administration officials said they had not decided how to respond to those demands, but experts said it seemed clear that the White House would refuse to comply there, too.
"Given the way in which both the U.S. attorney matter and the N.S.A. matter are now percolating through committees, I would be very surprised if there were not a major showdown over executive privilege," said Peter M. Shane, a law professor at Ohio State University and an authority on executive privilege. "It might not get to court, but there will have to be some very high pressure negotiations at a very late stage to avoid that."
The clash pits the Congressional right to conduct oversight -- in this case, an investigation into whether the Justice Department allowed partisan politics to interfere with hiring and firing of federal prosecutors -- against the president's right to unfettered and candid advice from his top aides. Experts disagree about how a court might rule.
Mr. Shane says Congress has a strong argument, because it is making a specific claim that it needs information to conduct an oversight investigation, and "specific claims of necessity usually outweigh general claims" like the one the administration asserts, arguing the president's need for unfettered advice. ...
The next step is for Democrats to decide whether to try to negotiate with the White House or to vote on a contempt resolution, a process that could take months and would lay the groundwork for sending the matter to court. Democrats did not say Thursday how they intended to proceed, although by the sound of their comments, negotiations did not seem likely any time soon.