Bush Claims Executive Privilege on Subpoenas
By Michael Abramowitz and Amy Goldstein
Washington Post Staff Writers, Friday, June 29, 2007; A01

LINK

The White House invoked executive privilege yesterday in withholding subpoenaed documents on fired U.S. attorneys out of confidence that it can prevail in court and weather a political storm by blaming Congress for overreaching, administration officials said.

White House counsel Fred F. Fielding said in a letter to the chairmen of the Senate and House judiciary committees that President Bush will not make available the requested documents or permit testimony by two former senior aides about White House and Justice Department calculations in the firing of nine federal prosecutors.

Striking a theme used by other presidents being investigated by Congress, Fielding wrote that Bush is taking the position to preserve what he termed a "bedrock Presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice" from top aides.

Advisers would be "reluctant to communicate openly and honestly" if they feared being dragged before Congress to testify or provide documents of their deliberations, he wrote.

Coming on the same day the Senate torpedoed Bush's immigration plan, Fielding's letter and the White House's statements threatened to worsen the already strained relations between the administration and the Democratic-controlled Congress, which has launched aggressive investigations aimed at exposing White House wrongdoing.

The statements from all sides yesterday called to mind the harsh rhetoric in Washington heard at the height of the Watergate scandal.

"This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances," said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee. "Increasingly, the president and vice president feel they are above the law."

The White House's action yesterday did not address the separate Senate subpoenas this week for documents related to the National Security Agency's warrantless wiretapping program. If Congress insists on those subpoenas, a senior administration official said, "we will have to deal with that. . . . I am not going to speculate at this point."

Even as Fielding's letter landed on Capitol Hill, the White House launched a campaign to portray the key issue as being congressional Democrats' obsession with attacking the president and his advisers, rather than addressing problems such as immigration and health care. Press secretary Tony Snow told reporters traveling on Air Force One that the subpoenas "may explain why this is the least popular Congress in decades, because you do have what appears to be a strategy of destruction rather than cooperation."

Democrats have charged that the administration's decision last year to fire nine U.S. attorney was tainted by politics, and they have called for Attorney General Alberto S. Gonzales to resign for providing shifting explanations of key events. In seeking documents related to White House involvement, Democrats appear to be gunning in particular for top White House political adviser Karl Rove. E-mails released so far suggest some involvement by his aides but offer only a murky picture of his own role.

Bush has offered to make Rove and other senior aides, including former White House counsel Harriet E. Miers, available for private interviews, but he has refused to allow a transcript to be made of those sessions and said they could not be conducted under oath.

That stance has been unacceptable to Democratic majorities of the House and Senate Judiciary committees. The Senate panel subpoenaed former White House political director Sara M. Taylor and its House counterpart subpoenaed Miers, who broached the idea of firing all U.S. attorneys after the 2004 election. Both committees have also demanded relevant documents about the associated White House deliberations.

Yesterday was the deadline for turning over the documents, and White House officials and lawmakers said efforts to achieve a compromise had stalled.

"Negotiations are not taking place, and the counsel's letter is an invitation to resume negotiations," said a senior administration official who provided a background briefing for reporters.

But it was unclear yesterday what there is to negotiate. Bush was described as dug in on the principle at stake, and lawyers familiar with his strong views about presidential powers speculated that he would fight more vigorously than his predecessors to keep Congress from obtaining what it wants.

The White House said yesterday's decision was the second time this president has invoked executive privilege. The first came in 2001, when Bush spurned a congressional subpoena requesting certain documents prepared for Attorney General Janet Reno during the Clinton administration.

The ranking Republican on the Senate Judiciary Committee, Arlen Specter (Pa.), who has sided with Democrats through most of the investigation into the U.S. attorneys' removal, said he thought Democrats should take Bush's offer of untranscribed interviews.

"If it's the president's way or some other way two years from now, I'll take the president's way," Specter told reporters, warning that a legal fight for the subpoenaed documents would prove so protracted that it could outlast Bush's remaining 1 1/2 years in office.

Although the senior administration official said the White House is confident its position is sound, constitutional scholars cautioned that this area of law is so unsettled that it is impossible to predict the outcome if the matter ends up in court.

Cass R. Sunstein, a liberal-leaning law professor at the University of Chicago, called the White House's arguments, set forth in a letter to Bush from Solicitor General Paul D. Clement, "more than respectable." But Sunstein said many of Clement's points fall within "a constitutional gap" on which the Supreme Court has not ruled.

A key question, Sunstein said, is whether executive privilege covers only a president, as the Supreme Court ruled in a 1974 case that required President Richard M. Nixon to turn over private tape recordings during the Watergate investigation. Since then, Sunstein said, the U.S. Court of Appeals for the District of Columbia Circuit has ruled in a Clinton-era case that documents involving White House aides may also be protected, although the high court has not considered that question.

A second significant question, Sunstein said, is whether Congress can demonstrate that it has a compelling need for the White House documents. The Supreme Court has held that such a need can overwhelm executive privilege, particularly if documents are vital to prove criminal or ethical wrongdoing.

Anticipating this debate, the White House's letters yesterday emphasized that the administration has already turned over to Congress thousands of pages of documents, some of which refer to interactions between Justice officials and aides to Bush.

In the Senate, leadership aides said the Judiciary Committee is trying to determine whether the administration, through its letters from Fielding and Clement, had fulfilled the first step necessary for Congress to enforce a subpoena, by providing a detailed explanation of which documents it was withholding and the legal basis for doing so.

Once that step is taken, a congressional committee chairman can rule on the validity of the privilege claims. If they are ruled invalid, the committee can repeat the directive to comply. If a president continues to balk, the committee can find the president in criminal contempt, and the issue would then be voted on by the full House or Senate. If a criminal citation is approved by either house, the matter is referred to a U.S. attorney with a recommendation to issue an indictment.

Lanny J. Davis, who was a lawyer in the Clinton White House, said that while Bush is evidently sincere in his desire to keep receiving unfettered advice, he risks losing much by taking the matter to court. "The irony is that by fighting the weakest case through the courts, they may end up weakening the very principle of executive privilege that they have so stubbornly and understandably defended," Davis said.

Washintonpost.com staff writer Paul Kane contributed to this report.

Q&A EXECUTIVE PRIVILEGE
LINK

It's not in the Constitution and there's no law on the books. But ever since George Washington refused to release his War Department correspondence, presidents have asserted their authority to keep Congress from probing into presidential affairs.

The skirmish is part of a long-standing power struggle between the executive and legislative branches, a fight that the courts have historically tried to avoid joining.

Despite more than a century of wrangling, the line between executive power and congressional oversight remains blurry.

Q: If executive privilege isn't a law, how can the president just refuse to comply with a congressional subpoena?

A: It's a principle rather than a law. It's rooted in the idea that the three branches of government must be independent. The president is basically telling Congress that, to do his job, he needs to be able to have private conversations with his advisers without having those conversations picked apart by Congress.

Q: Didn't the Supreme Court already settle this when it ordered President Nixon to surrender his Watergate tapes?

A: No. The 1974 decision in U.S. v. Nixon held the president could not withhold the tapes from federal prosecutors as part of a criminal investigation. The high court made it clear it wasn't wading into the thorny issue of whether presidents can refuse demands from Congress.

Q: What happens now?

A: As a practical matter, the two sides will likely keep negotiating until they reach a compromise. That's how it normally has worked, because neither side wants this to escalate into a court battle.

Q: But could it?

A: The Judiciary Committee and the full Senate could vote to cite witnesses for contempt and refer the matter to the local U.S. attorney to bring before a grand jury. Since 1975, 10 senior administration officials have been cited but the disputes were all resolved before getting to court. No president has mounted a court fight to keep his aides from testifying on Capitol Hill.

Q: If the line is so murky, why not fight this out and resolve it for good?

A: Nobody wants to lose. The White House knows that the judicial branch has not recently been kind to the presidency in fights over subpoenas, and the privilege they are asserting is not rooted in the Constitution. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill. That would take away a lot of their power in political disputes.

Q: Is this just a partisan dispute, a Republican/Democrat thing?

A: Presidents of both parties have asserted the privilege. But political gamesmanship usually dictates how these disputes are resolved. Sometimes the president wins, such as when President Eisenhower kept officials from testifying at Sen. Joe McCarthy's hearings. Other times, Congress wins, such when Nixon reluctantly let aides testify about the Watergate break-in.

Leahy Says He May Seek Charge Of Contempt Against President
By Lyndsey Layton, Washington Post Staff Writer
Monday, July 2, 2007; A02

LINK

The chairman of the Senate Judiciary Committee said yesterday that he will attempt to cite the White House for criminal contempt of Congress if it does not turn over documents related to the firing of nine federal prosecutors.

"If they don't cooperate, yes, I'd go that far," Sen. Patrick J. Leahy (D-Vt.) said on NBC's "Meet the Press." "This is very important to the American people."

Leahy's comments raise the stakes in a growing conflict between the Democrat-controlled Congress and the Bush White House, suggesting the constitutional clash may end up in a court case that could last beyond Bush's tenure as president.

Congressional investigators want testimony, internal e-mails and other documents to clarify what role Bush's senior staff played in the Justice Department's removal of nine prosecutors last year. The firings have triggered bipartisan calls for Attorney General Alberto R. Gonzales to resign.

The White House has refused congressional requests for information, asserting executive privilege, a claim invoked since George Washington's time to mean that the separation of powers embodied in the Constitution allows each branch to operate freely from the control or supervision of the others.

In a letter sent last Friday to Leahy and House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), White House counsel Fred F. Fielding said that the privacy of the documents must be respected to ensure that presidential advisers feel free to provide "candid and unfettered advice."

Instead, the White House has offered to allow the chairmen private, off-the-record interviews with current and former aides to President Bush.

But Leahy said yesterday he sees the documents and public testimony as key to the investigation of political interference by the White House with the nation's judicial system.

"The bottom line on the U.S. attorneys investigation is that we have people manipulating law enforcement," he said. "Law enforcement can't be partisan. Law enforcement can't decide, 'Well, we'll arrest this person because they're a Democrat but not this person because they're a Republican,' or the other way around."

The congressional committees sent subpoenas last month to former White House political director Sara M. Taylor and former White House counsel Harriet E. Miers and have also demanded relevant documents from the White House.

Lawmakers have given the White House until next Monday to provide a signed letter from the president asserting executive privilege, as well as a description of each withheld document, a list of who has seen the documents, and the legal basis for arguing that the documents may be shielded from public view.

Leahy's committee last week issued more subpoenas to the White House, Justice Department and vice president's office seeking information about the domestic eavesdropping program run by the National Security Agency.

The next step is for the congressional committee chairman to rule on the validity of the privilege claims. If the claims are deemed invalid, the committee can repeat the directive to comply. If the president continues to refuse, the committee can find the president in criminal contempt, and the issue would go to the full Senate or House. If a majority in either chamber approves the criminal citation, the matter is referred to a U.S. attorney with a recommendation to issue an indictment.

WP: High stakes in subpoenas battle
President asserts executive privilege, but legal precedent murky
By Michael Abramowitz and Amy Goldstein, The Washington Post
Updated: 11:31 p.m. ET June 28, 2007

The White House invoked executive privilege yesterday in withholding subpoenaed documents on fired U.S. attorneys out of confidence that it can prevail in court and weather a political storm by blaming Congress for overreaching, administration officials said yesterday.

White House counsel Fred F. Fielding said in a letter to the chairmen of the Senate and House judiciary committees that President Bush will not make available the requested documents or permit testimony by two former senior aides about White House and Justice Department calculations in the firing of nine federal prosecutors.

Striking a theme used by other presidents being investigated by Congress, Fielding wrote that Bush is taking the position to preserve what he termed a "bedrock Presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice" from top aides.

Advisers would be "reluctant to communicate openly and honestly" if they feared being dragged before Congress to testify or provide documents of their deliberations, he wrote.

Coming on the same day the Senate torpedoed Bush's immigration plan, Fielding's letter and the White House's statements threatened to worsen the already strained relations between the administration and the Democratic-controlled Congress, which has launched aggressive investigations aimed at exposing White House wrongdoing.

The statements from all sides yesterday called to mind the harsh rhetoric in Washington heard at the height of the Watergate scandal.

"This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances," said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee. "Increasingly, the president and vice president feel they are above the law."

Dueling allegations
The White House's action yesterday did not address the separate Senate subpoenas this week for documents related to the National Security Agency's warrantless wiretapping program. If Congress insists on those subpoenas, a senior administration official said, "we will have to deal with that. . . . I am not going to speculate at this point."

Even as Fielding's letter landed on Capitol Hill, the White House launched a campaign to portray the key issue as being congressional Democrats' obsession with attacking the president and his advisers, rather than addressing problems such as immigration and health care. Press secretary Tony Snow told reporters traveling on Air Force One that the subpoenas "may explain why this is the least popular Congress in decades, because you do have what appears to be a strategy of destruction rather than cooperation."

Democrats have charged that the administration's decision last year to fire nine U.S. attorney was tainted by politics, and they have called for Attorney General Alberto S. Gonzales to resign for providing shifting explanations of key events. In seeking documents related to White House involvement, Democrats appear to be gunning in particular for top White House political adviser Karl Rove. E-mails released so far suggest some involvement by his aides but offer only a murky picture of his own role.

Off-the-record interviews offered
Bush has offered to make Rove and other senior aides, including former White House counsel Harriet E. Miers, available for private interviews, but he has refused to allow a transcript to be made of those sessions and said they could not be conducted under oath.

That stance has been unacceptable to Democratic majorities of the House and Senate Judiciary committees. The Senate panel subpoenaed former White House political director Sara M. Taylor and its House counterpart subpoenaed Miers, who broached the idea of firing all U.S. attorneys after the 2004 election. Both committees have also demanded relevant documents about the associated White House deliberations.

Yesterday was the deadline for turning over the documents, and White House officials and lawmakers said efforts to achieve a compromise had stalled.

"Negotiations are not taking place, and the counsel's letter is an invitation to resume negotiations," said a senior administration official who provided a background briefing for reporters.

Specter: Take the offer
But it was unclear yesterday what there is to negotiate. Bush was described as dug in on the principle at stake, and lawyers familiar with his strong views about presidential powers speculated that he would fight more vigorously than his predecessors to keep Congress from obtaining what it wants.

The White House said yesterday's decision was the second time this president has invoked executive privilege. The first came in 2001, when Bush spurned a congressional subpoena requesting certain documents prepared for Attorney General Janet Reno during the Clinton administration.

The ranking Republican on the Senate Judiciary Committee, Arlen Specter (Pa.), who has sided with Democrats through most of the investigation into the U.S. attorneys' removal, said he thought Democrats should take Bush's offer of untranscribed interviews.

"If it's the president's way or some other way two years from now, I'll take the president's way," Specter told reporters, warning that a legal fight for the subpoenaed documents would prove so protracted that it could outlast Bush's remaining 1 1/2 years in office.

Unsettled law
Although the senior administration official said the White House is confident its position is sound, constitutional scholars cautioned that this area of law is so unsettled that it is impossible to predict the outcome if the matter ends up in court.

Cass R. Sunstein, a liberal-leaning law professor at the University of Chicago, called the White House's arguments, set forth in a letter to Bush from Solicitor General Paul D. Clement, "more than respectable." But Sunstein said many of Clement's points fall within "a constitutional gap" on which the Supreme Court has not ruled.

A key question, Sunstein said, is whether executive privilege covers only a president, as the Supreme Court ruled in a 1974 case that required President Richard M. Nixon to turn over private tape recordings during the Watergate investigation. Since then, Sunstein said, the U.S. Court of Appeals for the District of Columbia Circuit has ruled in a Clinton-era case that documents involving White House aides may also be protected, although the high court has not considered that question.

Does issue trump privilege?
A second significant question, Sunstein said, is whether Congress can demonstrate that it has a compelling need for the White House documents. The Supreme Court has held that such a need can overwhelm executive privilege, particularly if documents are vital to prove criminal or ethical wrongdoing.

Anticipating this debate, the White House's letters yesterday emphasized that the administration has already turned over to Congress thousands of pages of documents, some of which refer to interactions between Justice officials and aides to Bush.

In the Senate, leadership aides said the Judiciary Committee is trying to determine whether the administration, through its letters from Fielding and Clement, had fulfilled the first step necessary for Congress to enforce a subpoena, by providing a detailed explanation of which documents it was withholding and the legal basis for doing so.

Once that step is taken, a congressional committee chairman can rule on the validity of the privilege claims. If they are ruled invalid, the committee can repeat the directive to comply. If a president continues to balk, the committee can find the president in criminal contempt, and the issue would then be voted on by the full House or Senate. If a criminal citation is approved by either house, the matter is referred to a U.S. attorney with a recommendation to issue an indictment.

Lanny J. Davis, who was a lawyer in the Clinton White House, said that while Bush is evidently sincere in his desire to keep receiving unfettered advice, he risks losing much by taking the matter to court. "The irony is that by fighting the weakest case through the courts, they may end up weakening the very principle of executive privilege that they have so stubbornly and understandably defended," Davis said.

Washintonpost.com staff writer Paul Kane contributed to this report.

Senate subpoenas WHouse documents in spying probe
By Thomas Ferraro, June 27, 2007

WASHINGTON (Reuters) - A Senate chairman heading an investigation into the Bush administration's warrantless domestic spying program subpoenaed documents on Wednesday from the White House, Vice President Dick Cheney's office, the National Security Council and Justice Department.

Setting up a possible courtroom showdown, Senate Judiciary Committee Chairman Patrick Leahy gave the administration until July 18 to turn over specified materials that the White House last week declared off limits and highly classified.

In letters accompanying the subpoenas, Leahy wrote: "Over the past 18 months, this committee has made no fewer than nine formal requests to the Department of Justice and to the White House, seeking information and documents about the authorization of and legal justification for this program."

"There is no legitimate argument for withholding the requested materials," added Leahy, a Vermont Democrat. "The administration cannot thwart the Congress's conduct of its constitutional duties with sweeping assertions of secrecy and privilege."

The White House condemned the action.

"It's unfortunate that congressional Democrats have decided to choose confrontation," said White House spokeswoman Dana Perino. "This is a highly classified program that was specifically designed to protect civil liberties."

"The appropriate members of Congress have repeatedly been briefed on its substance, lawfulness, and effectiveness in protecting American lives by helping foil terrorist attacks," Perino said.

Leahy's panel, on a bipartisan vote of 13-3, authorized the subpoenas last week in another attempt to determine the administration's legal justification for warrantless surveillance begun shortly after the September 11 attacks.

Bush could challenge the subpoenas, citing a right of executive privilege his predecessors have invoked with mixed success to keep certain materials private and prevent aides from testifying.

Critics charge Bush's warrantless domestic spying program, conducted by the National Security Agency, violated the 1978 Foreign Intelligence Surveillance Act, which requires warrants. Bush said he could act without warrants under wartime powers.

In January, the administration abandoned the program and agreed to get approval of the FISA court for its electronic surveillance.

Bush and Democrats are at odds over revisions he wants in the FISA law, and some lawmakers question if the administration has actually ceased warrantless surveillance.

Interest in the justification of the program, which the administration said targeted people in the United States with suspected terrorists ties, increased last month after former Deputy Attorney General James Comey testified before the Judiciary Committee.

Comey told the panel about a March 2004 hospital-room meeting where then-White House counsel Alberto Gonzales tried to pressure a critically ill John Ashcroft, then the attorney general, to set aside Justice Department concerns and sign a presidential order reauthorizing the program.

With top Justice Department officials threatening to resign, Bush quietly quelled the uprising by directing the department to take steps to bring the program in line with the law, Comey said.

Congressional committees recently subpoenaed two of Bush's former aides in a separate investigation into whether partisan politics played a role in the firing last year of nine of the 93 U.S. attorneys,

Last week, a House committee set off another political firestorm when it reported that Cheney has refused to comply with an executive order that created government-wide procedures for safeguarding classified national security information.

(Additional reporting by Tabassum Zakaria)

Dems: Explain 'executive privilege' claim within 10 days
USA TODAY, June 29, 2007

WASHINGTON (AP) — Democrats took the first steps Friday in what could be a long march to court, with the Bush administration and Congress in a legal tug-of-war over executive and legislative branch powers.
In a letter to White House counsel Fred Fielding, the heads of the Senate and House Judiciary committees demanded an explanation in 10 days of why the White House claimed executive privilege on subpoenaed documents and vowed to invoke "the full force of law."

The White House — echoing the senior Republican on the Senate panel — urged the chairmen to accept the administration's earlier offer to allow private, off-the-record interviews with current and former aides to President Bush.

"If the committees just want the facts, then they should withdraw the subpoenas and accept the president's offer, instead of this continued pattern of gross-over reach and confrontation," said White House spokesman Tony Fratto.

The fight centers on an investigation that Democrats initially undertook into the firings of several U.S. attorneys, but which has since branched out to scrutiny of the administration's terrorism-era warrantless wiretapping and Attorney General Alberto Gonzales' stewardship of the Justice Department.

"The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented and damaging to the tradition of open government by and for the people that has been a hallmark of the republic," Rep. John Conyers, D-Mich., and Sen. Patrick Leahy, D-Vt., told Fielding.

They gave the White House until July 9 to furnish the factual and legal bases for the executive privilege claim and documentation that President Bush personally signed off on it.

Whether or not the White House meets the deadline, "we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law," Leahy and Conyers wrote.

At issue is Congress' investigation of whether the White House improperly ordered the dismissals of U.S. attorneys — and the committees' demands for internal Bush administration documents. Without an agreement on the subpoenaed documents, the dispute proceeded in slow motion toward contempt citations and, possibly, a constitutional showdown in federal court.

Throughout the nation's history, presidents have repeatedly asserted executive privilege to keep secrets from the courts, the Congress and most anyone else.

Over the years, Congress and the White House have avoided a full-blown court test about the constitutional balance of power and whether the president can refuse demands from Congress. Lawmakers could vote to cite witnesses for contempt and refer the matter to the local U.S. attorney to bring before a grand jury. Since 1975, 10 senior administration officials have been cited, but the disputes were all resolved before getting to court.

Fielding on Thursday 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 advisers and between those advisers 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.

Democrats — and some Republicans — responded with a rhetorical lashing of the administration's "Nixonian" conduct.

"We urge the president to reconsider this step and withdraw his privilege claim so the American people can learn the truth about these firings," the Conyers and Leahy wrote.

Those facts might have come out had the chairmen accepted Fielding's original offer to allow administration officials to testify in private, without a transcript, the president's lawyer pointed out Thursday. Lawmakers rejected that offer, however, demanding that a record be made of the interviews.

Sen. Arlen Specter, R-Pa., urged a pragmatic response to Fielding's claim of privilege, saying that if the committee accepted the private-interview offer it could always issue subpoenas later.

A Brief History of Executive Privilege From George Washington Through Dick Cheney

Panel OKs subpoenas of Bush aides
Move sets up constitutional showdown over firings of eight U.S. attorneys
NBC News and news services
Updated: 3:34 p.m. ET March 21, 2007

WASHINGTON - A House panel on Wednesday approved subpoenas for President Bush’s political adviser, Karl Rove, and other top White House aides, setting up a constitutional showdown over the firings of eight federal prosecutors.

By voice vote, the House Judiciary subcommittee on commercial and administrative law decided to compel the president’s top aides to testify publicly and under oath about their roles in the firings.

The White House has refused to budge in the controversy, standing by embattled Attorney General Alberto Gonzales and insisting that the firings were appropriate. White House spokesman Tony Snow said that in offering aides to talk to the committees privately, Bush had sought to avoid the “media spectacle” that would result from public hearings with Rove and others at the witness table.

“The question they’ve got to ask themselves is, are you more interested in a political spectacle than getting the truth?” Snow said of the overture Tuesday that was relayed to Capitol Hill by White House counsel Fred Fielding.

Publicly, the White House held out hope there would be no impasse.

“If they issue subpoenas, yes, the offer is withdrawn,” said White House spokesman Tony Snow. “They will have rejected the offer.”

He added that the offer for interviews on the president’s terms — not under oath, on the record or in public — is final.

‘There must be accountability’
Democrats dismissed the overture, in large part because there would be no transcript.

“There must be accountability,” countered subcommittee Chairwoman Linda Sanchez, D-Calif.

The Senate Judiciary Committee scheduled a vote Thursday on its own set of subpoenas, with Democrats complaining that the threat of force is the only way to get a straight answer from the White House.

“The White House is in a bunker mentality — won’t listen, won’t change,” said Sen. Dianne Feinstein, D-Calif. “I believe there is even more to come out, and I think it’s our duty to bring it out.”

The House subcommittee Wednesday approved, but has not issued, subpoenas for Rove, former White House Counsel Harriet Miers, their deputies and Kyle Sampson, Gonzales’ chief of staff, who resigned over the uproar last week.

The panel also voted to compel the production of documents related to the firings from those officials and Gonzales, Fielding and White House chief of staff Joshua Bolton. Fielding a day earlier refused to provide Congress internal White House communications on the subject.

Subpoenas as Democratic ‘leverage’
With the authorization in hand, Chairman John Conyers of Michigan could issue them at any time.

Authorizing the subpoenas “does provide this body the leverage needed to negotiate from a position of strength,” said Rep. William Delahunt, D-Mass.

Republicans called the authorization premature, though some GOP members said they would consider voting to approve the subpoenas if Conyers promises to issue them only if he has evidence of wrongdoing.

Conyers agreed. “This (authority) will not be used in a way that will make you regret your vote.”

Several Republicans said, “No” during the voice vote, but no roll call was taken.

For his part, Bush remained resolute.

Would he fight Democrats in court to protect his aides against congressional subpoenas?

“Absolutely,” Bush declared.

Bush supports Gonzales
In televised remarks on Tuesday, Bush defended Gonzales against demands from congressional Democrats and a handful of Republicans that Gonzales resign.

“He’s got support with me,” Bush said. “I support the attorney general.”

Democrats say the prosecutors’ dismissals were politically motivated. Gonzales initially had asserted the firings were performance-related, not based on political considerations.

But e-mails released earlier this month between the Justice Department and the White House contradicted that assertion and led to a public apology from Gonzales over the handling of the matter.

The e-mails showed that Rove, as early as Jan. 6, 2005, questioned whether the U.S. attorneys should all be replaced at the start of Bush’s second term, and to some degree worked with Miers and Sampson to get some prosecutors dismissed.

In his remarks Tuesday, Bush emphasized that he appoints federal prosecutors and it is natural to consider replacing them. While saying he disapproved of how the decisions were explained to Congress, he insisted “there is no indication that anybody did anything improper.”

Nonetheless, the Senate on Tuesday voted 94-2 to strip Gonzales of his authority to fill U.S. attorney vacancies without Senate confirmation. Democrats contend the Justice Department and White House purged the eight federal prosecutors, some of whom were leading political corruption investigations, after a change in the USA Patriot Act gave Gonzales the new authority.

NBC News, Reuters and The Associated Press contributed to this report.

New Scandal, Old Mistakes
By LANNY J. DAVIS, NY TIMES, October 29, 2005

FOR those of us who lived through the Clinton White House, it's déjà vu all over again.

The indictment against Lewis Libby, Vice President Dick Cheney's chief of staff, by the special prosecutor Patrick Fitzgerald presents a challenge in political-crisis management not just for the White House, but for the Democrats as well. And based on recent evidence, both are falling into the same old mistakes.

First, each side seems unable to resist applying a double standard, doing and saying exactly what only recently it criticized the other side for doing and saying.

Even before yesterday's indictments, Howard Dean and the Democratic National Committee were accusing the Republicans of being responsible for a "culture of corruption." But I remember the outrage within the Democratic Party when Republicans rushed to the microphones to accuse the Clintons of "corruption" over Whitewater, the F.B.I. files, the travel office, campaign finance and so on - all issues that turned out to be rabbit holes without any findings of guilt, much less indictments. In the end, using an isolated scandal to tie up an entire administration only hurts the nation (and tends to come back to haunt the scandal-mongering party).

Equally remarkable, some Republicans are now suggesting that perjury is not such a big deal. Senator Kay Bailey Hutchison of Texas said last weekend that perjury before a grand jury is only a "technicality," comparing Mr. Fitzgerald's investigation to that of Martha Stewart, "where they couldn't find a crime and they indict on something that she said about something that wasn't a crime." (To their credit, the editorialists at The Wall Street Journal had the intellectual honesty this week of admitting that perjury is perjury.)

Second, both sides seem too quick to attack the motives of their adversaries rather than dealing with the facts. Already we hear Republican leaders suggesting that Mr. Fitzgerald has "lost his way" or is "criminalizing" ordinary politics. I often wonder whether those of us in the Clinton White House who attacked the motives of Kenneth Starr, the Whitewater special prosecutor, and tried to demonize him personally would have been better off if we had focused solely on his professional misjudgments and his disproportionate expenditure of time, effort and money.

Similarly, the Democrats are playing up the idea that White House officials may have endangered national security in playing hardball politics. Well, I can remember all the times I picked up the phone and talked "on background" to reporters, "pushing back" against rumors damaging to President Clinton and citing information that I thought was "out there." I don't remember ever worrying about whether the facts that I felt were public knowledge might have been classified. But even if I had, I would probably have rationalized that anything I had heard on the grapevine couldn't possibly be a state secret. If every political aide was prosecuted for those kinds of conversations with the press corps, I'm afraid there wouldn't be enough jails to hold us.

Third, both sides seem to believe that deny-deny-deny is the only option - rather than dealing with the facts as they are, accepting responsibility as quickly as possible, and moving on. Certainly, in retrospect, most of us who remain great believers in the Clinton presidency wish that the Monica Lewinsky matter could have been concluded much earlier, so that the last two years of the administration could have been more productive and fulfilling for President Clinton and the country.

Now President Bush must do something that for him, it seems, is the most difficult task: admit a mistake. First, he must send his press secretary, Scott McClellan, into the White House press room to apologize for his misleading the American people - probably based on incomplete or inaccurate information he was given - when he denied involvement by White House officials in the disclosure that Valerie Wilson was a C.I.A. officer.

More important, President Bush should follow the ultimate rule of White House damage control: the buck stops here. He should admit that this entire mess could have been avoided had the White House, including the vice president, criticized Ambassador Joseph Wilson openly and directly, rather than whispering "on background" into the ears of certain reporters that his wife was responsible for sending him to investigate possible Iraqi attempts to buy uranium in Niger.

And then, after reminding everyone that Mr. Libby is entitled to the presumption of innocence, Mr. Bush should focus on the people's business and the far more serious problems facing America.

The best result of this latest scandal, and the hypocrisy and finger-pointing exhibited on both sides, would be for voters to say, "A pox on both your houses," reject the scandal culture and gotcha politics of both parties and seek new politics of common cause, collegiality and the public interest. The alternative is that most people will conclude that in American politics today the only standard is the double standard, and the cycles of conflict and rancor will continue.

Lanny J. Davis, aspecial counsel to President Bill Clinton from 1996 to 1998, is the author of "Truth to Tell: Tell It Early, Tell It All, Tell It Yourself: Notes From My White House Education."

letter of 3-27-07 to the House Committee on Oversight and Gov. on whistleblowers-in-america listserv

Vice-President Dick Cheney has his own version of "Executive Privilege":
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