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Ex-Members, Scholars Back Subpoena Effort

A chorus of voices last week joined House lawmakers seeking to enforce subpoenas issued to senior White House officials, including Congressional scholars, current and former Members, ex-U.S. attorneys and watchdog organizations.

In four separate friend-of-the-court briefs, the various parties urged U.S. District Judge John Bates not to dismiss the House lawsuit, asserting that doing so could diminish Congress’ powers and create an imbalance between the branches of the federal government.

“There is … a more important set of institutional issues involved here and even if this litigation is not fully resolved during this Congress … it’s very, very important in terms of trying to establish a legal basis for Congress exercising its power of subpoena,” Thomas Mann, a senior fellow at the Brookings Institution, said in a conference call with reporters on Friday.

Mann filed a brief along with Norman Ornstein, a Roll Call contributing writer and resident scholar at the American Enterprise Institute. Also signing on were Mark Rozell of George Mason University and Mitchel Sollenberger of University of Michigan-Dearborn.

The lawsuit seeks to enforce subpoenas issued by House Democrats in their struggle with the Bush administration over testimony and documents related to the allegedly political firings of nine U.S. attorneys in 2006. Democrats suspect that the firings originated in the White House, but Republicans argue that their dismissal is part of the president’s prerogative.

The Justice Department, which is representing former White House counsel Harriet Miers and Chief of Staff Josh Bolten, asked the federal court to throw out the lawsuit in mid-May, arguing that the House does not have standing to pursue the case.

The House went to court after it issued contempt citations for Miers and Bolten in mid-February, following a standoff with the Judiciary Committee over the scope of executive privilege. The Judiciary Committee subpoenaed the Bush aides, but they refused to testify, claiming their comments were protected.

Justice Department attorneys argue that court intervention in the dispute would upset the balance of power between the branches, asserting that any agreement should be hammered together outside of the court system.

Bates, a 2002 Bush appointee who also serves on the Foreign Intelligence Surveillance Court, is scheduled to hear motions in the case on June 23 in the U.S. District Court for the District of Columbia.

At that time, Bates is expected to rule on whether the lawsuit can proceed, and could potentially order the White House aides to appear before the House panel, as well as mandate that the aides provide a “privilege log,” or a detailed list of withheld documents, to the committee.

In addition to the four Congressional scholars, among those filing briefs in favor of the lawsuit are a group of former U.S. attorneys including Sen. Sheldon Whitehouse (D-R.I.), a prominent member of the Judiciary Committee who has been very vocal in criticizing the Bush administration on the U.S. attorneys matter.

Whitehouse is named in a separate brief, filed with fellow Sen. Daniel Inouye (D-Hawaii), former Sen. William Cohen (R-Maine) and former Reps. Mickey Edwards (R-Okla.) and Thomas Evans (R-Del.).

The friends of the court “recognize the great public importance of the effective exercise of Congressional oversight regarding the operations of the Executive branch, in order to protect against maladministration, abuse of power and failure to enforce laws fairly and impartially,” the current and former Members’ brief states.

“They believe strongly that Congressional authority could be frustrated unless Presidential claims of executive privilege are subject to meaningful judicial review. In particular, they oppose the absolutist view of executive privilege advanced by defendants in this case.”

The Rutherford Institute, Judicial Watch, Citizens for Responsibility and Ethics in Washington and the Brennan Center for Justice also collaborated on a brief.

House Republican leaders likewise filed a friend-of-the-court brief in mid-May. However, that document seeks to dismiss the case, echoing the Justice Department’s belief that it is not a matter for the court to decide, while also asserting that a ruling in the case could weaken Congressional authority in the future.

“The potential harm this matter threatens to Congress’ institutional oversight prerogatives and the public interest far outweigh any asserted need by the Plaintiff for the information sought from the Defendants,” the brief states.

Although the first hearing in the case is scheduled to begin this month, attorneys involved in the lawsuit don’t expect the matter to be resolved before the close of the 110th Congress and the departure of the Bush administration early next year.

Nonetheless, those involved expect the lawsuit to continue, even if a change in control of the White House brings a more agreeable relationship with Congressional lawmakers.

“Whether you get a new Justice Department and a new president with a different attitude or not, once you push an envelope it doesn’t return to the same place,” Ornstein said on Friday.

“This really is a time for Congress to come back into its legitimate role.”

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