Bush's legal case shaky, experts say

Compromise over aides' testimony viewed as likely

March 22, 2007|By Mark Silva | Mark Silva,CHICAGO TRIBUNE

WASHINGTON -- In forbidding his top aides to testify publicly and under oath on the firings of eight federal prosecutors, President Bush has set the stage for a possible legal battle with Congress that he might not be able to win, experts say, making a compromise more likely.

With the House Judiciary Committee authorizing subpoenas for the testimony of Bush's top advisers yesterday and the Senate Judiciary Committee prepared to do the same today, the White House says that preventing Karl Rove and other key officials from providing sworn public testimony is a matter of executive privilege.

The Supreme Court, however, while recognizing the right of the president to assert a constitutional confidentiality in many instances, has said that there is no such thing as "absolute privilege."

And some legal experts say the White House - in agreeing to let Rove and others be interviewed, albeit privately and without an oath or a transcript - effectively has conceded that their revelations would not compromise the president's right to confidentiality.

With the Democratic-run Congress confronting the prerogatives of the presidency, and with no one interested in a protracted court battle, legal analysts predict a compromise of some sort in which Congress settles for limited appearances by Rove and others.

"There is no absolute right to presidential privilege," said Peter Shane, a professor of law at Ohio State University who is writing a book about checks and balances. "What's at stake here is a qualified privilege. Basically, what somebody has to do - and that somebody could ultimately be a court - is consider the interests at stake for both parties ... and which is the weightier."

The president has said he is willing to have the courts decide that question.

Asked during a White House appearance this week whether he was prepared to "go to the mat" and take the issue to court, Bush replied, "Absolutely. I hope the Democrats choose not to do that."

Whatever the outcome of any legal case, a high-stakes political battle is also under way, with Bush criticizing Democrats for trying to score political points and Democrats accusing the White House of stonewalling.

Democrats say the White House's offer of a limited, closed-door interview of Rove, former general counsel Harriet E. Miers and others would not serve the goal of finding out why the Justice Department fired eight federal prosecutors last year.

The House Judiciary Committee, with some Republicans opposing the move in a voice vote yesterday, authorized Chairman John Conyers Jr., a Michigan Democrat, to issue subpoenas, but only with evidence of wrongdoing.

Democrats said the White House insistence that Rove and others not take an oath to tell the truth is troubling.

"The White House says they have nothing to hide, but evidently, they are willing to speak only behind closed doors, but not under oath," said Rep. Rahm Emanuel, an Illinois Democrat.

In addition to the other restrictions, White House counsel Fred Fielding has agreed to let committee members interview Rove, Miers and others only regarding communications between those inside and outside the White House.

"The president must remain faithful to the fundamental interests of the presidency and the requirements of the constitutional separation of powers," Fielding wrote congressional leaders.

Degrees of executive privilege vary, courts have said, with matters of national security ranking highest. The White House says it is not asserting a specific privilege but rather "basing our decision on the long-standing tradition of the respect for equal branches of government."

Bush said this week that the principle is central to a president's ability to get good advice.

"If the staff of a president operated in constant fear of being hauled before various committees to discuss internal deliberations, the president would not receive candid advice and the American people would be ill-served," he said.

The administration has asserted presidential privilege before. Bush invoked it during Miers' failed Supreme Court nomination, refusing to show the Senate memos Miers had written. Vice President Dick Cheney invoked it early in Bush's first term in declining to release notes of his energy task force.

The White House also has made exceptions. Condoleezza Rice, then the national security adviser, was allowed to testify before the Sept. 11 commission.

Mark Silva writes for the Chicago Tribune.

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