Conyers Threatens Contempt Citation After White House Asserts Privilege

Posted June 28, 2007 at 11:05am

Setting up a battle royal between Congress and the White House, the Bush administration asserted executive privilege Thursday morning in denying requests from lawmakers for documents and testimony from former top White House officials related to the ongoing U.S. attorneys probe.

House Judiciary Chairman John Conyers (D-Mich.) immediately suggested that a contempt of Congress citation may be necessary.

“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.

“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.”

Senate Judiciary Chairman Patrick Leahy (D-Vt.) called the move a “further shift by the Bush administration into Nixonian stonewalling.”

“This White House cannot have it both ways. They cannot stonewall Congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred,” he added.

“Increasingly, the president and vice president feel they are above the law — in America no one is above law.”

Added Sen. Charles Schumer (D-N.Y.), who has been leading the U.S. attorneys probe: “The president seems to be saying: ‘How can I stonewall? Let me count the ways.’”

“Maybe everyone has acted honorably. But show me an administration that craves secrecy, and I’ll show you an administration that probably has something to hide,” Schumer continued.

Both chambers had set this morning as a deadline for complying with subpoenas for information related to the ousting of nine federal prosecutors in 2006. The data includes documents and testimony from ex-White House counsel Harriet Miers and former White House political director Sara Taylor.

Democrats claim that the prosecutors were dismissed for improper political reasons with undue influence from the White House. The administration claims that the dismissals were entirely legitimate and well within the president’s prerogative.

In a June 28 letter to Conyers and Leahy, White House counsel Fred Fielding argued that both the documents and witness testimony would not be provided because they are protected by executive privilege.

“With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,” Fielding wrote. “We had hoped this matter could conclude with your Committees receiving information in lieu of having to invoke Executive Privilege. Instead, we are at this conclusion.”

The White House response may foreshadow another confrontation with Congress over subpoenas issued yesterday for information related to the National Security Agency’s warrantless wiretapping program.

Leahy subpoenaed documents related to the program and set a deadline of July 18 for compliance.

In his letter to Democrats, Fielding argued that “fear of being commanded to Capitol Hill to testify or having their documents produced to Congress” would prevent top presidential advisers from communicating “openly and honestly” with the president in making decisions.

He also asserted that the confidentiality protection was “especially strong” in this case because the president has the sole constitutional authority to appoint and remove federal prosecutors.

“Furthermore, it remains unclear precisely how and why your Committees are unable to fulfill your legislative and oversight interests without the unfettered requests you have made in the subpoenas,” Fielding wrote.

“Put differently, there is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue.”

Fielding reminded lawmakers that the president had proposed a compromise on the U.S. attorneys issue that involved releasing communications between the White House and Justice Department, and the White House and third parties, but not internal White House communications. Fielding also had offered to allow top aides to testify, but in private, not under oath and without a transcript. He said that offer still stands.

The terms were roundly rejected by Democrats, and no other serious proposals were ever publicly floated by the White House.

Fielding’s letter was accompanied by another letter to President Bush from Justice Department Solicitor General Paul Clement buttressing Fielding’s arguments.

Clement states that in all cases, it was appropriate for Fielding to claim executive privilege.

Clement argues that “Congress’s interests in the documents and related testimony would not be sufficient to override an executive privilege claim.”

As far as internal White House deliberations, Clement contends that while the president routinely consults with Congress over the nomination of U.S. attorneys, that is a “courtesy” that does not give Congress the right to “inquire into the deliberations of the President” and his appointment authority.

“Consequently, there is reason to question whether Congress has oversight authority to investigate deliberations by White House officials concerning proposals to dismiss and replace U.S. attorneys, because such deliberations necessarily relate to the potential exercise by the President of an authority assigned to him alone,” Clement wrote.

Clement further contends that any oversight interest is “sharply reduced” by the plethora of documents already provided to Congress by the Justice Department on the matter. Clement claims the 8,500 pages of documents turned over by Justice to Congress constitute an “extraordinary — and indeed, unprecedented” insight into the matter.

“The Committee’s legitimate oversight interests have therefore have already been addressed by the Department,” Clement argues, adding there would be “little additional legislative purpose” in revealing internal White House communications.

Furthermore, Clement wrote that communications between the White House and third parties, and between the White House and the Justice Department — some of which have already been disclosed — also are covered by executive privilege.

Clement advances similar arguments in asserting that executive privilege also covers the testimony of Taylor and Miers.

The Congressional investigation into the president’s appointment authority “falls outside its core constitutional responsibilities” and that it would be “very difficult, if not impossible” for White House aides to “separate in their minds” knowledge from protected and unprotected deliberations, Clement wrote.