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Bush rejects subpoenas on firings

He asserts executive privilege as he rebuffs lawmakers seeking papers and testimony in the attorneys case.

June 29, 2007|Tom Hamburger | Times Staff Writer

WASHINGTON — The Bush administration cited executive privilege Thursday as it rejected subpoenas from two congressional panels investigating last year's removal of eight U.S. attorneys, setting up a constitutional dispute that could take years to resolve.

In a letter to the chairmen of the House and Senate judiciary committees, White House Counsel Fred F. Fielding also said he had advised former White House officials subpoenaed in the matter not to provide any documents to Capitol Hill.

Fielding told the chairmen that President Bush had "attempted to chart a course of cooperation" with Congress, providing "information in a manner that accommodated presidential prerogatives."

The two panels are seeking testimony from former White House Counsel Harriet E. Miers and former political affairs director Sara M. Taylor, as well as documents related to the dismissals.

The Democratic chairmen -- Sen. Patrick J. Leahy of Vermont and Rep. John Conyers Jr. of Michigan -- waved away Fielding's arguments, accusing the White House of stonewalling.

"The president and vice president feel they are above the law," Leahy said Thursday morning after a telephone call from Fielding. "In America, no one is above the law."

Conyers said in a statement that the White House had proposed only "a take-it-or-leave-it offer" of limited access to witnesses and documents. Efforts to seek a compromise were rebuffed, committee staffers said.

Thursday was the deadline for responding to the subpoenas.


Congressional recourse

The Senate panel may soon seek to enforce the subpoenas -- meaning it would vote on a criminal contempt citation, which would then require a majority vote in the full Senate.

Since 1975, 10 Cabinet-level or senior executive officials have been cited for contempt for failure to produce documents, according to a background paper provided to reporters. In each instance, there was "substantial or full compliance with the document demands" before criminal proceedings were initiated.

This marks the second time Bush has asserted executive privilege, said White House spokesman Tony Fratto. The first was in December 2001, in response to a congressional subpoena for Justice Department documents on Clinton-era campaign fundraising, among other records.

Fielding had previously proposed that some documents be released and that key officials -- including Miers and political strategist Karl Rove -- be interviewed without transcripts in closed-door sessions.

But Leahy and Conyers said they needed more documents and on-the-record testimony.

The dispute between the Democratic-led Congress and the Republican White House has heated up as inquiries into Justice Department operations proliferate -- involving not only the prosecutor dismissals, but also the administration's decision to let the National Security Agency wiretap some domestic communications in terrorism investigations without getting warrants.

Subpoenas in the wiretapping inquiry were issued Wednesday, and the White House has not responded. The deadline is July 18.

In the U.S. attorneys inquiry, Democrats contend that several prosecutors lost their jobs because of political interference from the White House.

The House and Senate panels have sought to determine who was responsible for the firings, but have been unsuccessful in finding out how exactly the dismissals happened. That lack of success could be a factor that courts consider if they are asked to rule on a dispute over executive privilege.

"The question becomes whether a case can be made of serious wrongdoing sufficient to overcome the invocation of the privilege," said Walter Dellinger, a Justice Department official in the Clinton administration.

He said the congressional argument for cooperation was strengthened by the fact that "after months, no one has come up with a coherent or credible explanation for why [the U.S. attorneys] were fired or who made the decision to fire them. As time has gone on, the possibility that serious wrongdoing occurred has necessarily become more plausible."

In his letter to the two chairmen, Fielding said Bush was not willing to provide internal White House communications or public testimony.

"The reason for these distinctions rests upon a bedrock presidential prerogative: For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the executive branch," Fielding wrote.


Watergate ruling

In 1974, the Supreme Court denied President Nixon's attempt to quash a subpoena for Watergate-related tape recordings and documents, ruling that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege."

On Capitol Hill, Leahy asserted that Fielding's response was reminiscent of the Nixon era, though Nixon faced a request for information in a criminal inquiry and, so far, this inquiry is only congressional.

"This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances," Leahy said in a statement.


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