|
Executive privilege showdown |
|
By Susan Crabtree and Jeremy Jacobs
|
|
Posted: 06/29/07 07:40 PM [ET] |
Congressional Democrats and President Bush moved closer to a constitutional showdown over executive privilege when the White House brushed aside five congressional subpoenas yesterday, arguing that executive branch documents and communications regarding the firing of several U.S. attorneys are protected.
“I write at the direction of the president to advise and inform you that the president has decided to assert executive privilege and therefore the White House will not be making any production in response to these subpoenas for documents,” White House Counsel Fred Fielding wrote in a three-page letter to Senate and House judiciary committee Chairmen Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers Jr. (D-Mich.).
Leahy expressed outrage at the White House response, calling it a “Nixonian stonewall.” Democrats have led a six-month investigation of the ousting of nine U.S. attorneys.
“Increasingly, the president and vice president feel they are above the law,” Leahy said. “In America, no one is above the law.”
Leahy said he would review the assertion of executive privilege, a step he must take before pursuing a contempt of Congress citation. To consider such a citation, Leahy or Conyers must issue a ruling on whether the claims of executive privilege are valid, and direct the White House to comply. The ruling may be done on paper or at a “show cause” Senate or House hearing.
If the White House were to refuse to comply with such a ruling, the Judiciary Committee could bring up a contempt citation, which requires a majority vote in committee and a majority vote in the full Senate or House. If either chamber approves a contempt citation, it would be referred to the U.S. attorney’s office for the District of Columbia for a grand jury indictment, which, in an ironic twist, the Department of Justice (DoJ) would be called on to enforce.
Conyers was quick to express his disappointment with the president’s decision, saying the assertion of executive privilege “is unprecedented in its breadth and scope.”
“The president’s response to our subpoena shows an appalling disregard for the right of the people to know what is going on in their government,” Conyers said in a written statement. “This response indicates the reckless disrespect this administration has for the rule of law.”
Conyers hinted at a constitutional showdown to come.
“At this point, I see only one choice in moving forward, and that is to enforce the rule of law set forth in these subpoenas,” he added.
In his three-page letter to Leahy and Conyers, Fielding said the White House need not comply with subpoenas for documents because the president and his aides should be entitled to hold private conversations.
The privilege assertion covered a broad swath of communications, including between White House officials and those outside the executive branch; communications between White House officials and the DoJ; and communications to which the White House previously had volunteered to provide Congress access. Fielding also said former White House political affairs director Sara Taylor’s and former White counsel Harriet Miers’s lawyers were informed of the president’s decision and instructed not to turn over documents to the investigation.
A senior administration official said yesterday that although Fielding’s letter did not address Taylor’s and Miers’s subpoenas to testify before Congress, the president has indicated he will assert executive privilege over those subpoenas if need be.
“The president has advised that he would exercise executive privilege in regard to the testimony of both of those individuals if it gets to that point and the subpoenas are not withdrawn,” the official said.
“The reasons for these distinctions rest upon a bedrock presidential prerogative: For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisers and among those advisers and between those advisers and others within and outside the executive branch,” Fielding wrote.
The administration also released a letter from Solicitor General and Acting Attorney General Paul Clement stating that in his “considered legal judgment” the president “may assert executive privilege over the subpoenaed documents and testimony.”
Sen. Charles Schumer (D-N.Y.), a member of the Judiciary Committee, also expressed dissatisfaction with the finding.
“The president seems to be saying: ‘How can I stonewall? Let me count the ways,’” Schumer said. “Not since the Nixon administration have we seen a stonewalling strategy like this. I have no doubt it will backfire and it will not stand.”
The senior administration official maintained that the White House is “confident that our [legal] position is sound” and would hold up in court.
“We regret that we’re forced to take this step. We had very much hoped that accommodation could be reached and this could be avoided,” the official said.
The White House’s assertion of privilege dominated the executive session of the Senate Judiciary Committee as Leahy, Schumer and Sen. Orrin Hatch (R-Utah) sparred over the issue.
“The White House today ended its charade,” Leahy charged. “It’s obvious now that [White House senior aide] Karl Rove and Sara Taylor were heavily involved in these discussions” on the U.S. attorney firings.
Schumer accused the White House of having an “imperious attitude” toward Congress’s investigative power and the American people’s right to know.
“Show me an administration that likes secrecy, and I’ll show you an administration that has something to hide,” he said.
Hatch, the only Republican who attended the Senate Judiciary Committee’s executive meeting, took exception to Schumer’s and Leahy’s remarks.
Hatch acknowledged voting in favor of the White House subpoenas to protect the committees’ right to investigate, but said the White House has a right to protect its staff’s internal communications, just as Congress would if the tables were turned.
“Let’s face it, the U.S. attorneys matter was very poorly handled,” he said. “But the only thing that we’ve found is partisan innuendo.”
Hatch praised Fielding’s legal argument.
“It’s an excellent letter in the art of being White House counsel,” the GOP lawmaker said.
|
