President Bush’s decision to defy congressional demands for documents and testimony in the U.S. attorneys case leaves Democrats with a difficult choice of lowering their sights in the investigation or facing a long and uncertain court fight.
The White House told congressional leaders Monday that Bush was asserting executive privilege in refusing them access to senior officials and documents about the firing of eight U.S. attorneys last year. The sweeping declaration said that turning over such evidence would harm the president’s ability to obtain candid advice from aides.
The apparent unwillingness of the White House to engage in the sort of political compromise that has marked such subpoena battles in the past has put the tug-of-war in uncertain terrain. Congress is left having to decide whether to move forward with rancorous contempt proceedings against administration officials or accept a limited offer of cooperation that White House Counsel Fred F. Fielding renewed Monday in a letter to congressional leaders.
Bush has offered to make White House officials, including political strategist Karl Rove, available to Congress on condition that the meetings be closed, not under oath and with no transcripts.
“Whether out of arrogance or principled conviction, the current administration has seemed all but oblivious to the political downside of insisting on executive-branch secrecy,” said Peter M. Shane, an expert on executive privilege at the Ohio State law school. “Given that no one in the White House is seeking reelection, it is unclear whether they will compromise, short of receiving some extraordinary pressure from congressional Republicans who may be more concerned than the president with appearing to represent the ‘party of cover-up.’ ”
The subpoenas are part of a probe into whether the Justice Department and the White House orchestrated the firing of several top prosecutors last year for improper political reasons. Democrats believe that some of the U.S. attorneys were fired because of disagreements over public-integrity or voter-fraud cases that could have aided Republicans.
The administration has said that the firings may have been indelicately handled but were motivated by legitimate factors such as differences over law enforcement policy.
Citing the “exclusive character of the president’s appointment and removal power,” Fielding wrote Monday that Congress had failed to make a compelling case for greater White House cooperation.
“The president, no less than members of Congress and federal judges, needs the protection of a principle that shields his close advisors from open-ended inquiry by another branch of government,” Fielding wrote to Sen. Patrick J. Leahy (D-Vt.), and Rep. John Conyers Jr. (D-Mich.), each the chairman of his chamber’s judiciary committee.
“The question remains whether the committees have demonstrated that the information sought here is demonstrably critical to the responsible fulfillment of the committees’ legislative functions,” Fielding wrote.
Administration officials admit missteps but say the probe has become a political exercise with no hard evidence of wrongdoing that would justify penetrating the veil of executive secrecy.
Fielding also said Bush was instructing former White House Counsel Harriet E. Miers and former political affairs director Sara M. Taylor not to testify about the firings.
And Fielding rejected as “unreasonable” the committees’ demand that the White House describe in detail each document it was withholding. Leahy and Conyers said they sought the “privilege logs” to assess the justification of Bush’s privilege claims.
Taylor, who has been subpoenaed to testify Wednesday before the Senate Judiciary Committee, is still expected to appear as scheduled. So is Miers, who is to appear before the House panel Thursday. But they are expected to assert the presidential privilege and decline comment about the firings, congressional aides said.
“The White House seems to be throwing up every stonewalling technique they know to run down the clock on their time in office,” Rep. Linda T. Sanchez (D-Lakewood) said of Fielding’s letter.
Leahy asked: “What is the White House hiding? Was the president involved, and were his earlier statements to the American people therefore misleading? Or is this simply an effort by the White House legal team to protect White House political operatives whose partisan machinations have been discovered in a new set of White House horrors?”
Leahy said he still hoped to reach “some sort of accommodation” with the White House.
“Previous administrations have found ways to work with Congress,” he said. “This administration seems only to obstruct and obfuscate.”
A prominent Republican on the Senate Judiciary Committee, Arlen Specter of Pennsylvania, said Monday that he favored a compromise giving congressional lawmakers access to at least some information. A court battle “is going to outlast the president’s term,” he said.
For now, lawmakers seem to be working on dual tracks: keeping the door open for further negotiation while laying the groundwork for court action.
To proceed with a contempt action would require a majority vote of the judiciary committee issuing the subpoena as well as of the full chamber.
The matter would then go to the U.S. attorney for the District of Columbia, who would decide whether to prosecute.
Only one high-level contempt citation has ever gotten that far. In 1982, the House voted to hold in contempt Anne M. Gorsuch Buford, head of the Environmental Protection Agency, for refusing to produce documents concerning enforcement of laws on hazardous waste cleanup. President Reagan had ordered her not to produce the documents. The Justice Department declined to prosecute, saying that Congress was overstepping its bounds.
The current situation seems murkier. For one thing, it is unclear exactly who Congress would want to hold in contempt.
The attorney for Taylor, 32, who left the White House this spring, has argued it would be unfair to hold Taylor in contempt for obeying an order from the president. “She has two untenable choices. She can follow the president’s direction ... or she can attempt to work out an accommodation ... which will put her at odds with the president,” W. Neil Eggleston wrote to Leahy last week. “We urge the Senate not to use Ms. Taylor as the focus of the constitutional struggle.”
Miers, who left the administration in February 2005 to return to law practice in Dallas, could not be reached for comment. Although she was involved in early discussions about replacing prosecutors -- she suggested firing all 93, the White House has said -- she left long before any were dismissed.
Timing is a consideration. Some congressional aides doubt that any final action will be taken before the August recess.
Some legal experts think Congress has a strong case if the privilege issue ends up in court.
“I think Congress has a very legitimate right to see whether there is corruption and illegality within the Justice Department,” said Louis Fisher, an expert on executive privilege at the Library of Congress. “Are White House people involved in appointment and removal matters that should be done by Justice Department people?”
Fisher was alluding to testimony that some Justice officials considered politics in filling positions at the department, a possible violation of federal law.
“Once the White House people go away from purely giving confidential advice and start to administer or run a department, then I think they begin to lose their immunity,” Fisher said. “Otherwise, Congress can never get to the bottom of anything.”
Times staff writer James Gerstenzang contributed to this report.