It has been a year and half since Sen. Dianne Feinstein (D-Calif.) expressed concern about the firing of a handful of U.S. attorneys, including Carol Lam, the prosecutor in San Diego whose pursuit of former Rep. Randy "Duke" Cunningham (R-Rancho Santa Fe) led to his pleading guilty to receiving bribes from defense contractors. It has been six months since the House referred to the Justice Department contempt-of-Congress charges against White House Chief of Staff Joshua B. Bolten and former presidential counsel Harriet E. Miers. It's time for the Bush administration to reach a compromise with Congress along the lines suggested by two members of the Senate Judiciary Committee: Miers, Bolten and former Bush strategist Karl Rove would appear before the House Judiciary Committee and answer questions for the record, but without being sworn in. That would avoid the precedent of an advisor to the president being forced to testify under oath.
The administration is playing a weak legal hand. In July, U.S. District Judge John D. Bates rejected the contention that Miers and Bolten enjoyed absolute immunity to congressional subpoenas for their testimony and for documents. Last week, Bates refused an administration plea to put his order on hold during an appeal. Meanwhile, Rep. John Conyers Jr. (D-Mich.), House Judiciary Committee chairman, set a new deadline of Thursday for the White House to produce documents Congress is seeking. Conyers also has called Miers to appear on Sept. 11. Yet the administration continues to stall, apparently waiting for the subpoenas to expire next year. It has asked the U.S. Court of Appeals for the District of Columbia to reverse Bates and issue a stay. The court should say no.
Congressional hearings last year showed that low-level staffers targeted U.S. attorneys in furtherance of a policy incubated in the White House. It is also clear that at least one dismissal came at the behest of a Republican senator who thought the prosecutor was moving too slowly to investigate a prominent Democrat. Yet other dismissals -- including Lam's -- have yet to be satisfactorily explained. Instead of trying to push Congress' investigation into next year, the administration should start talking to Conyers about a compromise. Otherwise, the next subpoenas voted by Congress might be referred to a Democratic Justice Department that, unlike this one, would be willing to enforce them.