E-mails on attorneys’ firings could impact privilege case

As the White House prepares for a constitutional showdown over subpoenas of top administration aides to testify about the firings of U.S. attorneys, the viability of President Bush’s executive privilege argument may come down to the time-worn question: How much did the president know, and when did he know it?

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Democratic sources say that investigators in Congress have taken note of a brief e-mail exchange, released by the administration Monday night, which touches on this topic. But the exchange raises more questions than it answers.

In an e-mail dated Nov. 15, 2006, Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, asked then-White House Counsel Harriet Miers and her deputy, William Kelley, whether he had the green light to go forward with the firing plan.

Miers responded that she was “not sure whether this will be determined to require the boss’s attention.” Her e-mail ended with the words: “We will see. Thanks.”

Sampson, who resigned last week, responded with a critical question: “Who will determine whether whether [sic] this requires the President’s attention?”

The rest of the 3,000 documents the administration released Monday night do not answer that question. In fact, the documents appear to contain only one e-mail between mid-November and Dec. 4, which brings into question whether any e-mails between those dates contained information relating to the president’s role. The Department of Justice released additional documents yesterday afternoon, but they provided no additional information  on the issue.

Democrats want to know what role, if any, President Bush played in the plan. They also want to know who pushed the plan and who signed off on the list of attorneys slated for firing.

In Sampson’s first e-mail to Miers in the Nov. 15 series, he expressed a desire to “commence” the firing plan that week. It would not be executed, however, until Dec. 7. Sampson does not say whether he talked to Karl Rove himself, noting only that he had not informed anyone in “Karl’s shop, another pre-execution necessity I would recommend.”

Sampson further notes that he had consulted with Deputy Attorney General Paul McNulty but had yet to inform others who “need to be brought into the loop,” including Acting Associate Attorney General Bill Mercer, the Executive Office of U.S. Attorneys Director Mike Battle, or Johnny Sutton, the chairman of the Attorney General’s Advisory Committee.

The e-mail exchange is particularly relevant to Bush’s case because the Supreme Court has provided only limited protection for executive privilege. It acknowledges the need to protect communications between high-ranking government officials and those who advise and assist them, but it has also ruled that the public interest can outweigh that need in “non-military” and “non-diplomatic” discussions. Critics of the U.S. attorney firings argue that Bush’s case for executive privilege would be significantly weaker if his aides never discussed the plan for the firings with him.

In response to a barrage of questions from reporters yesterday, White House spokesman Tony Snow said only that Bush had “no recollection of [the firings] ever being raised with him.”

Another Nov. 15 e-mail, from Justice official Monica Goodling to Sampson and two other officials, undermines Bush’s contention in his televised address Tuesday that the U.S. attorneys who were fired had already served out their four-year terms and therefore could be dismissed.

“P.S. Technically, yes, it is a four year term but there is an automatic hold-over provision, so the four year term does not really mean anything and a large number of USAs are serving well past their four year mark,” Goodling wrote.
President Bush has agreed to make Rove and other senior officials available for private interviews with congressional investigators. But Democrats are objecting to the terms of the proposed conversations because interviewees would not be placed under oath and there would be no transcript of the testimony. Bush has pledged to invoke executive privilege to fight any congressional subpoenas for testimony, indicating that he would take the matter to court.

Defying Bush, a House Judiciary subcommittee voted yesterday to authorize subpoenas for top White House aides, including Rove, so that they can testify on the firings.

The panel approved subpoenas for Rove, Miers, their deputies and Sampson, but stopped short of issuing them. Top Democrats on the panel explained that having the authority to subpoena gives them added leverage in negotiations with White House Counsel Fred Fielding over the terms of administration officials’ testimony before Congress.
The Senate Judiciary Committee is set to follow suit today and authorize its own subpoenas for the same top administration aides.

During a Judiciary panel hearing yesterday, Sen. Arlen Specter (R-Pa.) said he is still deciding whether he will vote for the subpoenas. He cautioned that a lengthy constitutional battle over executive privilege could take two years and delay fact-finding.

“I would not like to see a two-year delay or more before we find these facts, because the efficiency and the viability of our United States attorneys hangs in the balance until we clear this up,” he said.