In late June, the Bush administration rejected Congressional subpoenas for testimony and documents implicating the forced dismissals of nine U.S. attorneys. White House refusal to comply with the subpoenas could trigger a constitutional standoff between President Bush and Congress. If he and lawmakers are to avoid a constitutional fight, they must work cooperatively and forge consensus.
In mid-June, legislators issued subpoenas for testimony on the firings from ex-White House counsel Harriet Miers and former political director Sara Taylor and served a subpoena for documents on White House Chief of Staff Josh Bolten. Congress issued the subpoenas after several months of efforts by lawmakers and the White House to reach consensus.
On March 20, Bush offered to have upper-level officials privately interviewed with no “oath, transcript, subsequent testimony” or subsequent issuance of subpoenas. A few Senate and House Judiciary members would jointly conduct the interviews that would be limited to communications between the White House and people outside it, especially in the Senate and House, about the resignations.
That day and for the next few months, the president and his assistants have invoked a “reasonable offer” and executive privilege, stating that the chief executive and his successors require candor from high-echelon aides. The president and his spokesmen have vowed to fight legislators, in courtrooms if they must, over subpoenas and remonstrated lawmakers against overpoliticizing the disagreement.
From March 20 until today, Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Judiciary Chairman John Conyers (D-Mich.) have strongly rejected the offer, asserting that testimony must be with oaths and transcripts for accountability. By March 22, the Senate and House Judiciary committees had authorized the issuance of subpoenas.
The chairmen frequently have tried to cooperate with the White House on the information sought. Leahy and Conyers have penned numerous letters and attended several meetings to reach accord. Senate Judiciary ranking member Arlen Specter (R-Pa.) has attempted to broker an agreement. On June 13, after a dozen weeks of effort to arrive at consensus, the Judiciary panels voted in favor of issuing subpoenas.
The White House reply on June 28 extended the controversy and increased the rhetoric. Bush’s counsel contended that issuing subpoenas and attempting to require material’s disclosure, rather than accepting the reasonable offer, have been confrontational. The press secretary excoriated legislators for deploying tactics of “destruction.” Leahy castigated the White House for “Nixonian stonewalling,” which displayed additional contempt for lawmakers. Conyers described the executive privilege claim as unprecedented, reckless and lawless. The next day, they sought particularized support for each document withheld.
On Monday, the White House repeated its earlier determination to assert executive privilege and rejected the request for greater specificity while asserting executive privilege for the testimony sought. The two chairmen reiterated threats to hold White House officers in contempt. If Bush does not alter course, this might lead to a constitutional battle, as lawmakers will attempt to enforce the subpoenas.
Legislators and Bush must step away from the constitutional cliff and pursue consensus. For instance, Congress might conduct private interviews and determine whether the meetings are sufficient, as Specter recommended recently. The White House may consider witness testimony using transcripts but without oaths and sealing this testimony for an extensive period. If lawmakers and Bush are open-minded and innovative, they can amicably resolve the dispute.
Failing to agree might be politically harmful to each side. For example, attempting to hold White House officers in contempt of Congress will be time-consuming. Specter observed that not acquiring the material needed would delay further an investigation that currently is dragging. The White House might appear to be hiding something, if the administration keeps opposing Congress’ requests.
Lawmakers and the White House should move to avoid the constitutional confrontation that is now approaching for the good of the public. Lawmakers and the chief executive must reach an agreement under which he can promote White House interests and lawmakers can protect their valid concerns about U.S. attorney appointments and resignations.
Carl Tobias is the Williams professor at the University of Richmond School of Law.