Heading off the constitutional showdown

Since mid-June, the simmering dispute over U.S. attorney firings has come to a slow boil and is now threatening to overflow with serious implications for constitutional governance. If President Bush and Congress are to stop this controversy from escalating into a constitutional conflagration, they must reduce the decibel level, cooperate and fashion an accord.

On June 28, the Bush administration rejected legislative subpoenas for testimony and documents related to the attorney firings. In mid-June, lawmakers had subpoenaed the testimony of former White House Counsel Harriet Miers and political director Sara Taylor and documents from White House Chief of Staff Josh Bolten. The subpoenas were issued after three months of activity by each branch to reach consensus.

On March 20, the White House offered to have a few Senate and House Judiciary Committee members jointly and privately interview senior Bush advisers with no oath, transcript, or later testimony or subpoenas. The interviews would be restricted to exchanges between the officials and people outside the White House, namely in Congress, regarding the dismissals.
Since then, Bush and his spokespeople have depended on the notions of a “reasonable offer” and executive privilege, claiming he and subsequent presidents need candor from high-ranking assistants. Bush and his aides have threatened to resist Congress, in lawsuits, if necessary. Sen. Patrick LeahyPatrick Joseph LeahyCongress should build on the momentum from spending bill Overnight Tech: Zuckerberg grilled by lawmakers over data scandal | What we learned from marathon hearing | Facebook hit with class action lawsuit | Twitter endorses political ad disclosure bill | Uber buys bike share Overnight Cybersecurity: Zuckerberg faces grilling in marathon hearing | What we learned from Facebook chief | Dems press Ryan to help get Russia hacking records | Top Trump security adviser resigning MORE (D-Vt.) and Rep. John Conyers Jr. (D-Mich.), who chair the Judiciary Committees, have not accepted the offer, claiming that testimony must be under oath and recorded for accountability. By March 22, the panels had authorized subpoenas’ issuance. Leahy and Conyers attempted to work with the Bush administration on the material requested by writing letters and attending meetings. Sen. Arlen Specter (R-Pa.), the ranking minority committee member, also cooperated with the White House. On June 13, after months of negotiations, the Judiciary panels voted to issue subpoenas.

The June 28 White House response exacerbated the dispute by increasing the rhetoric. Its counsel labeled confrontational issuing subpoenas and mandating disclosure. The press secretary criticized lawmakers for using “destructive strategies.”
Leahy blasted the White House’s “Nixonian stonewalling” and its contempt for legislators. Conyers found no precedent for the executive privilege assertion, describing it as reckless. On June 29, the chairmen requested more particular justification for the documents withheld.

Three weeks ago, Bush reiterated his executive privilege claim, denied the specificity request, and asserted privilege for the testimony, directing Taylor and Miers to not testify. On July 11, Taylor attempted to honor the directive and the subpoena by supplying rather disjointed testimony. Leahy mentioned the possibility of holding her in contempt, yet the panel took no action. The next day, Miers failed to appear, and a House subcommittee ruled that the White House could not legally compel her to disregard the subpoena. On July 13, Conyers formally notified Miers that “federal law makes it very clear that recipients of a congressional subpoena must appear,” that lawmakers “must insist on compliance,” and that “failure to promptly mitigate her noncompliance could subject her to contempt proceedings.” Six days later, the subcommittee took similar action regarding Bolten’s failure to comply with the document subpoena.

On July 17, Miers refused again to testify because that would be “precisely what the President has prohibited her from doing” and said Congress’s dispute is with him. Conyers labeled her noncompliance a serious affront to checks and balances and the panel. Last Wednesday, the Committee voted to hold her and Bolten in contempt, invoking a report on the seven-month investigation, which the chair said “uncovered evidence of wrongdoing by the department and the White House staff.”

On July 20, the White House said it would not permit a U.S. attorney to file contempt charges for Congress, which prompted Leahy to accuse it of consistently stonewalling and of interfering with checks and balances.

 Last week opened with Tony Snow’s Monday retort: “It seems that we have a fishing expedition that’s woefully short on fish.” The next day, Senators Leahy and Specter sharply criticized Attorney General Alberto Gonzales’s Senate Judiciary Committee testimony, saying he lacked credibility. Last Thursday, four Committee Democrats formally asked that a special prosecutor investigate whether Gonzales had told the truth. FBI Director Robert Mueller gave testimony that apparently contradicted Gonzales, and Leahy issued a subpoena for Karl Rove’s testimony. These actions have intensified the constitutional brinksmanship. If Bush does not alter course, this will provoke a constitutional fight because lawmakers will enforce the subpoenas.

Congress and the White House must retreat from the constitutional cliff and seek accord. For example, legislators should assess more seriously whether private interviews can yield the material needed, as Specter has urged. The president could evaluate allowing testimony with transcripts but not oaths and sealing it for a lengthy period. Miers could at least appear and determine whether she can honor Bush’s directive and the committee request. As to the documents, each side might examine a viable compromise that, for instance, emphasizes the release of fewer, but more, important documents. If the branches work constructively, both can resolve their differences.

Prolonging this high-stakes game of chicken will pose significant risks for Congress and the White House. Legislators may seem to be on a fishing expedition, and pursuing contempt will devour resources and time. If the administration continues resisting, it will appear to stonewall for the purpose of concealing relevant material.

For the nation’s good, lawmakers and Bush should avert the constitutional standoff toward which they are hurtling.
Congress and the White House must forge an agreement that protects legislative interests in U.S. attorney hiring and firing and presidential prerogatives in securing frank advice.

Tobias is the Williams Professor at the University of Richmond School of Law.