White House rejects Senate subpoenas

Bush cites executive privilege on U.S. attorney firings

June 29, 2007|By David Nitkin | David Nitkin,SUN REPORTER

WASHINGTON -- The White House, citing executive privilege, rejected congressional subpoenas yesterday regarding the firings of seven U.S. attorneys late last year and signaled that it intended a similar fight to withhold information about the National Security Agency's warrantless eavesdropping program.

Administration officials said they will not produce documents requested from several current and former White House officials related to the attorney firings, and indicated that the president is likely to block testimony by former counsel Harriet E. Miers and former political aide Sara Taylor before House and Senate committees.

"We've provided more than 8,500 pages of documents as well as access to key players. We have expressed our willingness to give the information necessary for Congress to do its deliberations," said White House spokesman Tony Snow. "And it's really up to Congress now."

Snow said the Senate Judiciary Committee subpoenas issued this week for records on the administration's legal justification for the NSA eavesdropping program amount to "an outrageous request" that aims to "make life difficult for the White House."

In investigating the firings of the U.S. attorneys, Congress is seeking evidence on whether changes were made for political reasons or to help or hinder investigations. Many witnesses, including Attorney General Alberto R. Gonzales, have said they cannot recall who assembled the list of attorneys to be fired.

Congressional committees have sought information from the White House, including testimony from presidential adviser Karl Rove. The White House has refused to allow Rove and Miers to testify in public with a recorded transcript, and the panels issued subpoenas this month to demand more information.

If Congress goes to court to enforce the subpoenas, the legal proceedings could extend to the end of the Bush administration, legal experts and lawmakers say.

Sen. Arlen Specter, a Pennsylvania Republican and former chairman of the Judiciary Committee, recalled a similar case dragging on for more than two years. "If we go more than two years in litigation, it doesn't have a whole lot of point," he said.

White House lawyers said the president must protect the ability of advisers to provide guidance without fear of being summoned before Congress.

"For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice," counsel Fred F. Fielding wrote yesterday to the Democratic chairmen of the Senate and House Judiciary Committees in response to the subpoenas.

Charles Tiefer, a professor at the University of Baltimore School of Law, called Fielding's argument "one of the most extreme privilege claims since Watergate, because it extends to relatively low-level White House staff."

Tiefer, a former House of Representatives counsel, predicted that the stalemate would drag on because Congress "will probably have to bring the force of public opinion and accepted legal doctrine to bear by further hearings."

The White House has not formally responded to subpoenas on the NSA eavesdropping program. But Snow's comments reflect a hardening of its position.

The NSA program dates to 2001 and was first disclosed in 2005, receiving added attention this year when former Deputy Attorney General James Comey testified about a hospital visit by top White House aides to persuade then-Attorney General John Ashcroft to drop objections.

Comey's testimony shed light on internal administration disputes over the program, and raised more questions about its legality, said Carl Tobias, a constitutional law professor at the University of Richmond. "There are issues of privacy and domestic surveillance," he said. "It is important to have a regularized process."

Douglas W. Kmiec, a constitutional law professor at Pepperdine University, said the Bush administration's privilege claim rests on solid legal footing because the appointment of U.S. attorneys - as well as national security - fall squarely under executive functions.

"We're getting close to the end of the brinksmanship, but we're not there yet," said Kmiec. "The question is, will somebody with a cool head and disposition say we are going to bring an end to this?"

Specter took a step in that direction yesterday, saying that the eavesdropping subpoenas should be revised and that Congress should accept the president's offer of allowing Rove and others to testify in private now that Bush has invoked a claim of executive privilege.

david.nitkin@baltsun.com

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