Bush, Congress dig in for fight over privilege
By Mark Silva | Washington Bureau
Copyright © 2007, Chicago Tribune
July 28, 2007
WASHINGTON - In an escalating conflict between Congress and President Bush over the privileges and prerogatives of the presidency, the two sides could be headed for a court battle that outlasts Bush's term in office, pushing the outcome of any congressional investigation over the firings of federal prosecutors into the next administration.
Beyond the legal battle, an equally important political fight is playing out, with the White House painting congressional leaders as obsessed with "political theater" and raging out of control over overblown controversies surrounding a wiretapping program and the dismissals of U.S. attorneys. Democrats, meanwhile, complain of a politically motivated White House that considers itself above the law.
For now, neither side seems in the mood to yield on even the smallest matters. Congressional leaders are armed with subpoenas and contempt citations, and are threatening to conduct a perjury investigation and seek a special counsel. The White House is defiantly defending Atty. Gen. Alberto Gonzales, not only regarding the dismissals of prosecutors last year but also regarding his increasingly controversial performance as the nation's chief law-enforcement officer.
Bush also is aggressively asserting his presidential privileges regarding the right to hire and fire prosecutors and the confidentiality of his staff's internal communications. And the White House has lashed out at a congressional move to hold senior administration officials in contempt of Congress for refusing to testify in a probe of the prosecutor firings.
The White House suggests Democrats have lost their moorings.
"Every day this Congress gets a little more out-of-control: a new call for a special prosecutor, a new investigation launched, a new subpoena issued, an unprecedented contempt vote and an old score somehow settled," White House spokesman Tony Fratto said this week.
"In our view, this is pathetic," added White House spokesman Tony Snow, denouncing the "political theater" as the House Judiciary Committee voted to cite two senior Bush advisers for contempt of Congress.
Democratic leaders insist they have demonstrated patience in months of negotiations with the White House over records and testimony, and they maintain they have no choice but to press a legal challenge of the administration's broad assertion of presidential privilege.
Even if Democrats never manage to secure the testimony they want, the conflict could help them attain a political goal: Painting the Bush White House as obstructionist and obsessed with power.
"There is a cloud over this White House and a gathering storm," Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said this week as his committee subpoenaed two senior White House officials.
Subpoenas, contempt citations
The committee issued subpoenas ordering Bush chief political adviser Karl Rove and another White House official to testify about their roles in the shuffling of federal prosecutors last year. And the House Judiciary Committee has cited White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers for contempt of Congress in refusing to obey similar subpoenas.
In addition, Sen. Charles Schumer of New York and three other Democrats have called for the appointment of a special counsel to investigate whether Gonzales has given false testimony to Congress. Gonzales has said that he had not discussed the firings with his staff, while one staffer said he had.
Gonzales and others also have given apparently conflicting testimony about a secretive Terrorist Surveillance Program. Gonzales has said there was no internal administration dispute about the program, while FBI Director Robert Mueller has spoken of a great debate. Yet the White House maintains that Gonzales testified accurately, with Snow vigorously backing him up on Friday.
Even some critical of the White House response to the firings complain that Democrats are playing a political hand rather than deploying a legal strategy.
"I think that much of what Sen. Schumer has done has been politically motivated," said Sen. Arlen Specter (R-Pa.). "We're not going to find out anything seeking to enforce these subpoenas."
The White House insists that it has offered its best compromise: allowing congressional investigators to question administration officials privately, not under oath and without transcripts. The White House also says it is "laying down a marker" on executive privilege, refusing to allow Congress to force public testimony about internal communications.
The principle of presidential privilege is not as clear-cut as the White House would have it, and is not specifically enshrined in the Constitution. Still, presidents long have asserted the privilege as an outgrowth of the separation of powers, and the Supreme Court has found a qualified, though not absolute, executive privilege.
Abner Mikva, a former federal judge and White House counsel to President Bill Clinton, said invoking it is a risky strategy.
"There is a big political price that the executive branch pays," Mikva said. "If they don't have anything to hide, why won't they testify? ... On the other hand, if the executive maybe wants to stall, they can stall it for two years."
The White House argues that after receiving thousands of pages of documents, Congress has found no wrongdoing in the firings of prosecutors, who serve at the pleasure of the president.
With the House preparing to vote on contempt-of-Congress charges in September, the White House has signaled it will block federal prosecutors from pursuing them, likely leading to a long court battle. The Justice Departments of the Reagan and Clinton administrations have maintained that Congress cannot make federal prosecutors enforce contempt citations against aides to the president for obeying orders to invoke executive privilege in refusing to testify to a committee.
'Statute does not apply'
An aide to Gonzalez wrote to House Judiciary Committee Chairman John Conyers (D-Mich.), "It is important that the committee appreciate fully the long-standing Department of Justice position, articulated during administrations of both parties, that the criminal contempt of Congress statute does not apply to the president or presidential subordinates who assert executive privilege."
Still, with its resistance to subpoenas, the White House could be playing into a picture that Democrats are happy to paint of a stonewalling administration.
"The message from this White House is that the president, vice president and their loyal aides are above the law," Leahy complained, "No check. No balance. No accountability."
Democrats also insist that they have proceeded carefully, exhausting all avenues for cooperation with the White House before pulling the trigger on a potentially protracted legal confrontation.
Specter, as a moderate Republican frustrated with the administration but also angry at the Democrats, has perhaps the best perspective on the theatrics of both sides.
"There's a little bit of Don Quixote here," Specter said. "We are moving through a minuet."
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Targeted by Congress
White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers: Facing citations for contempt of Congress issued by House Judiciary Committee for refusing to comply with committee subpoenas for information about firings of federal prosecutors. The White House has invoked executive privilege in refusing to comply with subpoenas and says Justice Department is unlikely to refer any contempt charges to a U.S. attorney.
White House chief political adviser Karl Rove and deputy Scott Jennings: Facing subpoenas from the Senate Judiciary Committee to testify in prosecutor probe. The White House has a week to reply, is likely to cite executive privilege.
For alleged false statements:
Atty. Gen. Alberto Gonzales: Challenged by Sen. Charles Schumer (D-N.Y.) and three other Senate Judiciary Committee members for alleged conflicting testimony about the prosecutor firings and the administration's Terrorist Surveillance Program. Senators are asking the solicitor general to appoint a special counsel outside the Justice Department. The White House says Gonzales has told the truth. Sen. Arlen Specter (R-Pa.) suggests any special counsel is unlikely.