WASHINGTON - President Bush’s decision to defy congressional demands for documents and testimony in the U.S. attorneys case leaves Democrats with a difficult choice of lowering their sights in the investigation or facing a long and uncertain court fight.
The White House told congressional leaders Monday that Bush was asserting executive privilege in response to the request for access to senior officials and documents about the politically charged firing of eight U.S. attorneys last year. The declaration said that turning over such evidence would harm the president’s ability to obtain candid advice from aides.
The apparent unwillingness of the White House to engage in the sort of political compromise that has marked such previous subpoena battles has put the tug-of-war in uncertain terrain. Congress is left having to decide whether to move forward with contempt proceedings against administration officials or accept a limited offer of cooperation that White House counsel Fred Fielding renewed Monday in a letter to congressional leaders.
Bush has offered to make White House officials, including political strategist Karl Rove, available to Congress, but only on condition that the meetings be closed and with no transcripts.
“Whether out of arrogance or principled conviction, the current administration has seemed all but oblivious to the political downside of insisting on executive branch secrecy,” said Peter Shane, an expert on executive privilege at the Ohio State law school. “Given that no one in the White House is seeking re-election, it is unclear whether they will compromise short of receiving some extraordinary pressure from congressional Republicans who may be more concerned than the president with appearing to represent the ‘party of cover-up.’ “
The subpoenas are part of a months-long probe into whether the Justice Department and the White House orchestrated the firing of several top prosecutors last year for improper political reasons.
The administration has said that, while the firings might have been indelicately handled, they were motivated by differences over law-enforcement policy and other legitimate factors. The prosecutors, all appointed by the president, can be fired at will, officials have pointed out.
Fielding said Monday that Congress had failed to make a compelling case for greater White House cooperation.
Fielding also said that Bush was instructing former White House counsel Harriet E. Miers and political operative Sara Taylor to decline to testify about the firings.
Taylor, subpoenaed to testify before the Senate Judiciary Committee on Wednesday, and Miers before the House panel on Thursday, are expected to appear as scheduled. But they are expected to assert the presidential privilege and decline comment about the firings, congressional aides said.
For now, lawmakers seem to be working on dual tracks: keeping the door open for further negotiation while laying the groundwork for possible court action.
To proceed with a contempt action would require a majority vote of the judiciary committee issuing the subpoena as well as the full House or Senate.
Under the law, the matter then would be referred to the U.S. attorney for the District of Columbia – a Bush appointee – who would make the decision whether to prosecute.