Former Bush aides subpoenaed
Two former senior White House officials were subpoenaed Wednesday by congressional committees investigating the firing last year of eight U.S. attorneys. The subpoenas of former counsel Harriet E. Miers and political affairs director Sara M. Taylor set the stage for a new confrontation between Congress and the White House.
The White House has declined to provide unfettered access to testimony and documents that lawmakers have sought as part of the three-month probe, even as Justice Department documents and testimony have shown that the White House was deeply involved in the firings.
Democrats believe the dismissals were calculated to affect public corruption and voter registration cases in ways that would benefit Republicans. The Bush administration has said the Democratic-led probe has turned up no evidence of misconduct.
“The White House cannot have it both ways,” said Sen. Patrick J. Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, which issued the subpoena to Taylor. “It cannot stonewall congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred.”
White House spokesman Tony Snow said it was “way premature” to ask whether the White House would go to court to fight the subpoenas. “They are going to be reviewing the subpoenas and responding appropriately,” Snow said.
If the officials refuse to comply, Congress could hold them in contempt, possibly resulting in court action, although such disputes are usually resolved far short of that. While some legal experts said the administration appeared to be operating from a position of weakness, the White House also seemed to be gearing up for a fight.
Leahy’s panel, along with the House Judiciary Committee, also subpoenaed White House documents pertaining to the firings and ordered them produced no later than June 28.
Miers, a longtime friend and advisor of Bush, was involved in the genesis of the prosecutor purge, at one point suggesting that the administration fire all 93 U.S. attorneys, the White House has said.
Taylor closely monitored the firing of Arkansas prosecutor H.E. “Bud” Cummins III, who was replaced by Timothy Griffin, a protege of White House political strategist Karl Rove, other documents show.
“Ms. Taylor takes her responsibilities as a citizen very seriously, and she is hopeful the White House and Congress are quickly able to work out an appropriate agreement on her cooperation with the Senate’s proceedings,” W. Neil Eggleston, her attorney, said in a prepared statement.
Miers, who is practicing law in Dallas, could not be reached for comment.
Taylor was subpoenaed to appear July 11 before the Senate Judiciary Committee; Miers was ordered to appear before the House Judiciary Committee on July 12.
Except in cases involving national security or military secrets, the executive branch enjoys no absolute privilege to withhold documents from Congress. In most disputes, courts balance the interests of the administration to keep the documents private, against the public or congressional interests in learning about the material.
Some legal experts said they believe that Congress would prevail in any court fight over the U.S. attorney documents.
“I think if you were to stand back from this and say, ‘Who has the better argument?’, the answer is going to be Congress,” said Peter M. Shane, an expert at the Ohio State University law school on the separation of powers.
Shane said that conditions the White House has insisted on before making officials available for questioning appear unreasonable. The current White House counsel, Fred F. Fielding, has agreed to permit officials to answer questions from members of Congress but only if the testimony is private, unsworn and there is no transcript.
“Saying that the investigation can proceed but not with an oath or transcript, I think, is a ridiculous offer,” Shane said. “If there cannot be a firm record of what is actually said, then it is quite literally a pointless investigative technique. If I were advising the majority counsel on either side, I cannot imagine accepting that offer. It is worse than nothing.”
If an official refuses to testify, and Congress decides to hold him or her in contempt, a vote would normally be taken by the committee that issued the subpoena. Later, the entire House or Senate would vote on the contempt question. But such moves are extraordinarily rare.
The only head of an executive branch agency believed ever found in contempt of Congress by either chamber was a former administrator of the Environmental Protection Agency, Anne M. Gorsuch Burford. Burford, on orders of President Reagan, had refused in 1982 to give lawmakers documents about EPA actions against operators of hazardous waste sites. Congress voted Burford in contempt and referred the matter to the U.S. attorney in Washington. The Justice Department refused to prosecute, however, and went to court seeking a ruling that the House action violated the separation of powers doctrine. That suit was later dismissed; the administration eventually released the documents.
In 1996, then-White House counsel Jack Quinn and other aides of President Clinton were held in contempt by the House Government Reform and Oversight Committee for refusing to turn over documents pertaining to the firing of seven employees of the White House travel office. The administration released documents hours before the full House was scheduled to take up the contempt vote.
Such precedents suggest that Bush White House officials “would have to give in if Congress certified them in contempt,” said Charles Tiefer, a former House deputy general counsel who is a professor at the University of Baltimore law school.
The decision to issue the subpoenas came two days after Republicans blocked an effort by Democrats to hold a no-confidence vote on Atty. Gen. Alberto R. Gonzales.
Sen. John Cornyn (R-Tex.) decried the no-confidence vote and subpoenas as “political sideshows.”
Times staff writer Maura Reynolds contributed to this report.