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White House Asserts Executive Privilege    [

    Conyers Threatens Contempt Citation After White House Asserts Privilege
    By Rachel Van Dongen
    Roll Call

    Thursday 28 June 2007

    Setting up a battle royal between Congress and the White House, the Bush administration asserted executive privilege Thursday morning in denying requests from lawmakers for documents and testimony from former top White House officials related to the ongoing U.S. attorneys probe.

    House Judiciary Chairman John Conyers (D-Mich.) immediately suggested that a contempt of Congress citation may be necessary.

    "The President's response to our subpoena shows an appalling disregard for the right of the people to know what is going on in their government," Conyers said.

    "At this point, I see only one choice in moving forward, and that is to enforce the rule of law set forth in these subpoenas."

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) called the move a "further shift by the Bush administration into Nixonian stonewalling."

    "This White House cannot have it both ways. They cannot stonewall Congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred," he added.

    "Increasingly, the president and vice president feel they are above the law - in America no one is above law."

    Added Sen. Charles Schumer (D-N.Y.), who has been leading the U.S. attorneys probe: "The president seems to be saying: 'How can I stonewall? Let me count the ways.'"

    "Maybe everyone has acted honorably. But show me an administration that craves secrecy, and I'll show you an administration that probably has something to hide," Schumer continued.

    Both chambers had set this morning as a deadline for complying with subpoenas for information related to the ousting of nine federal prosecutors in 2006. The data includes documents and testimony from ex-White House counsel Harriet Miers and former White House political director Sara Taylor.

    Democrats claim that the prosecutors were dismissed for improper political reasons with undue influence from the White House. The administration claims that the dismissals were entirely legitimate and well within the president's prerogative.

    In a June 28 letter to Conyers and Leahy, White House counsel Fred Fielding argued that both the documents and witness testimony would not be provided because they are protected by executive privilege.

    "With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," Fielding wrote. "We had hoped this matter could conclude with your Committees receiving information in lieu of having to invoke Executive Privilege. Instead, we are at this conclusion."

    The White House response may foreshadow another confrontation with Congress over subpoenas issued yesterday for information related to the National Security Agency's warrantless wiretapping program.

    Leahy subpoenaed documents related to the program and set a deadline of July 18 for compliance.

    In his letter to Democrats, Fielding argued that "fear of being commanded to Capitol Hill to testify or having their documents produced to Congress" would prevent top presidential advisers from communicating "openly and honestly" with the president in making decisions.

    He also asserted that the confidentiality protection was "especially strong" in this case because the president has the sole constitutional authority to appoint and remove federal prosecutors.

    "Furthermore, it remains unclear precisely how and why your Committees are unable to fulfill your legislative and oversight interests without the unfettered requests you have made in the subpoenas," Fielding wrote.

    "Put differently, there is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue."

    Fielding reminded lawmakers that the president had proposed a compromise on the U.S. attorneys issue that involved releasing communications between the White House and Justice Department, and the White House and third parties, but not internal White House communications. Fielding also had offered to allow top aides to testify, but in private, not under oath and without a transcript. He said that offer still stands.

    The terms were roundly rejected by Democrats, and no other serious proposals were ever publicly floated by the White House.

    Fielding's letter was accompanied by another letter to President Bush from Justice Department Solicitor General Paul Clement buttressing Fielding's arguments.

    Clement states that in all cases, it was appropriate for Fielding to claim executive privilege.

    Clement argues that "Congress's interests in the documents and related testimony would not be sufficient to override an executive privilege claim."

    As far as internal White House deliberations, Clement contends that while the president routinely consults with Congress over the nomination of U.S. attorneys, that is a "courtesy" that does not give Congress the right to "inquire into the deliberations of the President" and his appointment authority.

    "Consequently, there is reason to question whether Congress has oversight authority to investigate deliberations by White House officials concerning proposals to dismiss and replace U.S. attorneys, because such deliberations necessarily relate to the potential exercise by the President of an authority assigned to him alone," Clement wrote.

    Clement further contends that any oversight interest is "sharply reduced" by the plethora of documents already provided to Congress by the Justice Department on the matter. Clement claims the 8,500 pages of documents turned over by Justice to Congress constitute an "extraordinary - and indeed, unprecedented" insight into the matter.

    "The Committee's legitimate oversight interests have therefore have already been addressed by the Department," Clement argues, adding there would be "little additional legislative purpose" in revealing internal White House communications.

    Furthermore, Clement wrote that communications between the White House and third parties, and between the White House and the Justice Department - some of which have already been disclosed - also are covered by executive privilege.

    Clement advances similar arguments in asserting that executive privilege also covers the testimony of Taylor and Miers.

    The Congressional investigation into the president's appointment authority "falls outside its core constitutional responsibilities" and that it would be "very difficult, if not impossible" for White House aides to "separate in their minds" knowledge from protected and unprotected deliberations, Clement wrote.

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    White House Asserts Executive Privilege
    By Terence Hunt
    The Associated Press

    Thursday 28 June 2007

    President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

    Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor. Congressional panels want the documents for their investigations of Attorney General Alberto Gonzales' stewardship of the Justice Department, including complaints of undue political influence.

    The Democratic chairmen of the two committees seeking the documents accused Bush of stonewalling and disdain for the law, and said they would press forward with enforcing the subpoenas.

    "With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the Senate and House Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."

    Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

    "Increasingly, the president and vice president feel they are above the law," said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as "Nixonian stonewalling."

    His House counterpart, Judiciary Chairman John Conyers, D-Mich., said Bush's assertion of executive privilege was "unprecedented in its breadth and scope" and displayed "an appalling disregard for the right of the people to know what is going on in their government."

    In his letter, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts.

    Leahy and Conyers rejected that offer. Republican Sen. Orrin Hatch of Utah, a member of the Judiciary Committee, said the Democrats should have accepted it.

    "We would be much farther ahead in finding out whether there's any real impropriety here or not," said Hatch, a former chairman of the committee. He also said presidents have legitimate reasons to protect the confidentiality of the advice they get.

    In his letter, Fielding explained Bush's position on executive privilege this way: "For the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch."

    This "bedrock presidential prerogative" exists, in part, to protect the president from being compelled to disclose such communications to Congress, Fielding argued. And he questioned whether the documents and testimony the committees seeking are critically important to their investigations.

    It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December, 2001, to rebuff Congress' demands for Clinton administration documents.

    Tensions between the administration and the Democratic-run Congress have been building for months as the House and Senate Judiciary panels have sought to probe the firings of eight federal prosecutors and the administration's program of warrantless eavesdropping. The investigations are part of the Democrats' efforts to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks.

    Democrats say the firings of the prosecutors over the winter was an example of improper political influence. The White House says U.S. attorneys are political appointees who can be hired and fired for almost any reason.

    Democrats and even some key Republicans have said that Gonzales should resign over the U.S. attorney dismissals, but he has steadfastly held his ground and Bush has backed him.

    Just Wednesday, the Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office, demanding documents pertaining to terrorism-era warrant-free eavesdropping. "It's an outrageous request," White House press secretary Tony Snow said.

    "It's pretty clear that again members of Congress are engaged in an attempt ... to try to do what they can to make life more difficult for the White House," Snow said. "It also explains why this is the least popular Congress in decades, because you do have what appears to be a strategy of destruction rather than cooperation."

    Separately, the Senate Judiciary Committee also is summoning Gonzales to discuss the program and an array of other matters - including the prosecutor firings - that have cost a half-dozen top Justice Department officials their jobs.

    The Judiciary panels also subpoenaed the National Security Council. Leahy said that, like Conyers, he would consider pursuing contempt citations against those who refuse.

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    Associated Press Writer Deb Riechmann contributed to this story.