President Bush directed former aides to defy congressional subpoenas on Monday, claiming executive privilege and prodding lawmakers closer to their first contempt citations against administration officials since Ronald Reagan was president.
It was the second time in as many weeks that Bush had cited executive privilege in resisting Congress’ investigation into the firings of U.S. attorneys.
White House Counsel Fred Fielding insisted that Bush was acting in good faith in withholding documents and directing the two aides – Fielding’s predecessor, Harriet Miers, and Bush’s former political director, Sara Taylor – to defy subpoenas ordering them to explain their roles in the firings over the winter.
In the standoff between branches of government, Fielding renewed the White House offer to let Miers, Taylor and other administration officials meet with congressional investigators off the record and with no transcript. He declined to explain anew the legal underpinnings of the privilege claim as the chairmen of the House and Senate judiciary committees had directed.
“You may be assured that the president’s assertion here comports with prior practices in similar contexts, and that it has been appropriately documented,” Fielding wrote.
Rep. John Conyers, chairman of the House panel, left little doubt where the showdown was headed.
“Contrary to what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally,” the Michigan Democrat said.
Sen. Arlen Specter, R-Pa., said the posturing was a waste of time and money and a distraction from the questions at hand: Who ordered the firings, why, and whether Attorney General Alberto Gonzales should continue to serve or be fired.
Specter, a former chairman of the Senate Judiciary Committee, said the Democrats’ threat of taking the standoff to court on a contempt citation was spurious because the prosecutor who would consider it is a Bush appointee.
“On a case like this, does anyone believe the U.S. attorney is going to bring a criminal contempt citation against anyone?” Specter said in a telephone interview. “The U.S. attorney works for the president and it’s a discretionary matter what the U.S. attorney does.”
Historically, such standoffs over executive privilege are resolved before the full House or Senate votes on referring a congressional contempt citation to the U.S. attorney for the District of Columbia. But rather than cooling off over the July 4th holiday, Bush and Democrats returned from the weeklong break closer to a legal confrontation.
The last contempt finding Congress sought to prosecute was against former Environmental Protection Agency official Rita Lavelle in 1983. The Democratic-led House voted 413-0 to cite her for contempt for refusing to appear before a House committee. She was later acquitted in court of the contempt charge but was convicted of perjury in a separate trial.
Just before Congress left town, Bush invoked executive privilege on subpoenas lawmakers filed for any documents Taylor and Miers received or generated about the firings. On Monday, Bush again invoked privilege on the women’s scheduled testimony for this week. Through their attorneys, Bush instructed the pair not to testify on the firings.
Lawmakers said they had plenty of questions to ask the women outside the privilege claim.
Both officials were included on e-mails about the firings released earlier this year by the Justice Department, and Miers at one point suggested the firings of all 93 federal prosecutors. Taylor also could have sent e-mails on a Republican National Committee account outside the White House, according to Senate Judiciary Committee Chairman Patrick Leahy, who insisted those communications were not covered by executive privilege.
The dispute squeezes Miers and Taylor between the president’s instructions and the possibility of being held in contempt of Congress. Their lawyers did not respond to requests for comment, but Leahy said he expects Taylor to appear before his panel Wednesday, as scheduled. It was unclear if Miers would appear before Conyers’ committee the next day.
Fielding invoked executive privilege in dismissing a Monday morning deadline set by Conyers and Leahy for the White House to explain and list which documents it was withholding from their committees.
“We are aware of no authority by which a congressional committee may `direct’ the executive to undertake the task of creating and providing an extensive description of every document covered by an assertion of executive privilege,” he wrote.
Bush’s counsel, a veteran of executive privilege disputes, cloaked his tough rejoinder to the Democratic committee chairmen in gentlemanly language. But his message was unequivocal: The White House won’t back down.
He argued that the committees’ “open-ended” investigation into the firings had no constitutional basis, in large part because the president has the right to hire and fire his own political appointees.
Fielding cast the impasse as a natural constitutional tension between branches of government and complained that Leahy, D-Vt., and Conyers had accused the White House of acting in something other than good faith. He called for “a presumption of goodwill on all sides.”
Democrats didn’t bite.
“The president seems to think that executive privilege is a magic mantra that can hide anything, including wrongdoing,” said New York Sen. Chuck Schumer, chairman of the Senate Democrats’ 2008 election campaign operation.