In Executive Privilege Fight, More Talk Than Action
    T.R. Goldman
    The Legal Times

    Monday 26 March 2007

    At times last week, as the Senate Judiciary Committee debated whether to authorize administration subpoenas in the U.S. attorney imbroglio, it sounded more like a Vegas poker room than the Dirksen Senate Office Building.

    Was White House Counsel Fred Fielding's one and only offer - to provide four current and former White House officials to Congress for private interviews conducted without transcripts and not under oath - really a non-negotiable proposition?

    Committee Chairman Patrick Leahy (D-Vt.) seemed to think so. "I take the president at his word. I don't [see] it as a negotiating tool."

    Responded the committee's former chairman, Arlen Specter (R-Pa.): "Isn't the first thing said in negotiations that 'our offer is non- negotiable.'?"

    More palaver followed, while the March 22 debate turned to the practical: If the committee was really searching for answers, would a protracted legal confrontation over executive privilege, a real but nonetheless murky concept not even mentioned in the Constitution, help the Senate figure out why eight U.S. attorneys were fired?

    "Sunshine is the best disinfectant," Leahy said at one point, arguing that public testimony under oath would provide the best way to get at the truth.

    Retorted Utah's Orrin Hatch (R): "That's a fine statement, but if Mr. Fielding means what he says, you're not going to get the answers."

    In the end, authorizing subpoenas and issuing them are entirely different, and have entirely different implications. The Judiciary Committee's voice vote (with Iowa Republican Charles Grassley publicly noting that he voted with the Democrats) to authorize subpoenas, which followed by a day a similar House Judiciary Committee vote, merely upped the committees' power to leverage a negotiated settlement.

    And assuming that Fielding's March 20 letter to the House and Senate Judiciary Committees is in fact a starting point, and not a fiat, then there would seem to be a bit of maneuvering room.

    For example, Specter noted, Congress could easily agree to Fielding's demand that the four former and current White House officials - Karl Rove, deputy White House counsel William Kelley, special assistant in the office of political affairs Scott Jennings, and former White House Counsel Harriet Miers - not be required to testify under oath because there's already a statute that punishes lying to Congress, whether under oath or not.

    If the administration is worried about trampling on the dignity of the office of the president, (picture Rove entering Congress, wading through a sea of television cameras and reporters), then hold the hearings before the House and Senate Judiciary Committees in private, and release a transcript later. Indeed, a transcript of the testimony would seem to be, at a minimum, the one thing that Congress will demand.

    "Indispensible," said Specter at the committee meeting. "If not, senators will walk out of the room and in perfectly good faith have highly different versions of what occurred."

    Specter, who is close to Leahy and the most liberal Republican on the committee, may be the most likely senator to try to broker a deal with the White House. And the negotiations will almost certainly be member-driven. Specter told reporters that he called Fielding last week and suggested that there be a transcript and a limit on the number of members who would question the White House officials. Fielding, he said, listened attentively, but said he had no authority to negotiate, and would take the suggestion to the president.

    Blink of An Eye

    While it may look like Congress and the White House are headed for a dramatic showdown - a separation-of-powers confrontation over what in the executive branch is private, and what is subject to congressional purview - it's all but certain that a compromise will be reached.

    The reason is relatively simple: the stakes are too high to force the issue into court, says Ray Shepherd, a partner at Venable who spent three years as staff director of the Senate's Permanent Subcommittee on Investigations.

    "They've set up this big game of chicken - and nobody wants to blink. Neither the White House nor the Hill wants the court to rule because it could be like Texas hold'em, it's all or nothing," Shepherd says.

    For the White House, the incremental gains it has made in asserting executive authority, especially its winning Supreme Court decision allowing details of Vice President Dick Cheney's energy task force to remain secret, could conceivably disappear.

    "The long-term implications of a bad decision outweigh the risk of going forward," notes Mark Rozell, a political scientist at George Mason University and author of Executive Privilege: Presidential Power, Secrecy, and Accountability.

    It's unlikely, in fact, that any court decision involving the forced testimony of current and former White House officials would make any sweeping pronouncements. But given the Court's changing bent, and the recent additions of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., it might be inclined to look more sympathetically on an executive privilege claim than before, Rozel says.

    "If history is any guide, then negotiations should resolve this, or somebody will blink," Rozel says. "But a little part of me believes that Bush wants this battle, that he's not going to totally wilt under the Senate, and with the current composition of the Supreme Court, part of me believes he might go all the way."

    Lack of a Bright Line

    Executive privilege claims operate on a sliding scale, there is no bright line; instead, it depends on the seniority of the those involved in providing advice and counsel to the presidential "executive."

    The privilege's constitutionality was established in the 1974 case, U.S. v. Nixon as well as the fact that there is no privilege claim when there is alleged criminal behavior.

    But in the case of the eight U.S. attorneys, the administration was on solid legal footing, at least when it asked them to resign.

    "The firings were perfectly legal," says a Democratic Senate Judiciary Committee staffer, adding that if any laws were broken, like obstruction of justice or lying to Congress, "they were virtually all broken in the coverup."

    If the unlikely happens, and neither side backs down, the House or the Senate Judiciary Committees - or both - would then issue subpoenas compelling Rove, Miers, Kelley, and Jennings to appear before Congress in a public session.

    If they showed up and refused to testify, or refused to show up at all, they would be held in criminal contempt of Congress. Contempt charges would need to be approved by either, or both, houses of Congress, and most likely the House, where a simple majority would suffice.

    In the Senate, it's likely the parliamentarian would rule the contempt motion debatable, which means it could be filibustered on the Senate floor, a move that would require 60 votes to cut off debate and hold an up or down vote.

    Still, Democrats are already compiling a list of Republican senators who have publicly criticized the U.S. attorney debacle, including John Sununu of New Hampshire and Gordon Smith of Oregon, both of whom have already called for the resignation of Attorney General Alberto Gonzales; John Cornyn of Texas, usually one of the president's strongest supporters; Minnesota's Norm Coleman; John Ensign of Arizona; and Specter.

    Once the contempt motion is voted out of either chamber, the U.S. attorney for the District of Columbia, Jeffrey Taylor, would impanel a grand jury to seek indictments on those officials who refused to testify. The case would first be heard in U.S. District Court here, then move to the appellate court and, ultimately, to the Supreme Court.

    In the end, it is Congress that almost always holds the upper hand, notes Lanny Davis, a partner at Orick Herrington & Sutcliffe and a former special counsel to President Bill Clinton, whose senior staffers were served with numerous subpoenas to testify before Congress - and almost always did.

    "No matter how you begin, it goes into an endless loop. You stand up on principle, then Congress yells 'What are you hiding?' and you give in," he says.

    Each side has its own particular buzzwords, he recalls. On the administration's side, there is "policy and the deliberative process," concepts which are generally assumed to be protected by executive privilege. On the other side, it's Congress' right to oversee and pursue legislation.

    "Ultimately," Davis says, "these are arguments decided by the world of public opinion and politics. And in this case, the White House is on the short end because they started out by not being transparent. They've dug themselves into a hole."

    However the two sides resolve their dispute, it may not be settled anytime soon. "Leahy's standing firm," notes Charles Tiefer, a professor at the University of Baltimore School of Law and a former deputy House counsel. "I think they will stay in their opposed positions for some period of time - one that's measured in weeks rather than days."