Privilege Fight
With Bush Poses
Risk for Congress
To Discontented Voters,
Lawmakers May Seem
Too Focused on Probes
By EVAN PEREZ and JOHN D. MCKINNON
WSJ.com
July 10, 2007; Page A1
A looming constitutional showdown over the White House's right to shield internal communications may pose less risk to President Bush, who is resisting subpoenas from Congress, than to lawmakers faced with deepening public discontent.
For the White House, which notified the Senate yesterday that Mr. Bush is asserting executive privilege to block the subpoenaed testimony of former staffers, the move appears aimed at either winning in the courts or running out the clock before a judgment is rendered.
For the Democratic-controlled Congress, which has multiple investigations under way into the Republican administration's firing of eight U.S. attorneys, a prolonged fight could have a clear political price. Congress's approval ratings are plummeting, it hasn't been able to pass many major bills amid divisions within the Democratic majority, and the White House is starting to portray the body as one more concerned with investigating than law making.
The clash is the first significant confrontation over the doctrine known as executive privilege since Mr. Bush took office in 2001. In part, that is because Republicans largely controlled Congress until this year. But it also reflects shifting stances.
After initially pledging to cooperate with Democrats on immigration, energy and other legislative priorities, the administration has in recent weeks settled on a tougher stance in response to multiple congressional investigations, which are themselves becoming more strident in tone.
Although the president is on the ropes over Iraq, immigration and other issues, he may be able to gain the upper hand in this fight. Over the years, administrations of all stripes have asserted the right to seek unvarnished guidance from advisers, claiming that wouldn't be possible amid a constant threat of congressional subpoenas.
The administration's tack makes it more likely the current fight will end up in court. There, the president may have the benefit of waiting out a resolution, given that he has only about 18 months left in office. Under those circumstances, the battle might appear to voters to be mere partisan infighting, and would in any case be of little practical use to lawmakers.
"Congress is surely concerned that a court fight could create lengthy delays in obtaining the information -- potentially many months of delays," says Michael Bromwich, a partner at Fried, Frank, Harris, Shriver & Jacobson LLP in Washington and former inspector general at the Justice Department. But while the White House would relish the chance to portray lawmakers as overzealous, he says, "there is a built-up public appetite for oversight that has not yet been satisfied."
The White House counsel, Fred Fielding, in a letter to the Democratic and Republican leaders of the Senate Judiciary Committee, also shot back at what he called the accusatory tone of an earlier letter from the senators, and questioned the committee's authority to demand documents. (Read the full text of Fielding's letter1.)
After enjoying six years of a largely pliant Republican Congress, the Bush administration has been buffeted by probes and hearings by Democrats seeking to uncover information about a range of subjects, from domestic wiretapping to the leak of a former Central Intelligence Agency operative's name to the use of intelligence before the invasion of Iraq. Hints of the White House's more aggressive response to congressional questions could be seen in recent press briefings, such as one last Thursday.
In response to a question about the Senate investigation, Scott Stanzel, a White House spokesman, said Congress had launched "over 300 investigations, had over 350 requests for documents and interviews...and they have had over 600 oversight hearings in just about 100 days," while passing only six major bills.
Sen. Charles Schumer, the New York Democrat who has led the Senate probe of the firings, said in an interview that the White House will fail if it believes it can "run out the clock" on the congressional inquiry. Based on past executive-privilege fights, he says it is likely Congress can persuade a court to issue a contempt citation, which will prompt negotiations to hand over documents before the courts give a final ruling.
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"We think there's a good likelihood that we'll hear this information within months," Mr. Schumer says. "Stonewalling never looks good to the public."
Mr. Schumer dismissed the administration's accusation that Congress isn't doing enough legislating. "We've always thought it our role to do both legislating and oversight," he says. "There's been no oversight for the last six years of this administration."
Jim Manley, a spokesman for Senate Majority Leader Harry Reid of Nevada, responded more aggressively to the White House's critique of Congress's oversight hearings. "The White House needs to get used to the fact that after years of getting away with absolutely no oversight while Republicans controlled Congress, Democrats are finally going to hold it accountable to the American people."
As for Congress's priorities and the amount of oversight it is doing, he added, "The administration's numbers are as faulty as the intelligence they used to mislead the country into war, and Democrats are wholly committed to delivering on our promises to the American people to make our country safer, clean up Washington and put working families first."
But Congress's beefed-up oversight might not be playing well with voters. While Mr. Bush's popularity has fallen to its lowest levels of his presidency -- 29% in the latest Wall Street Journal/NBC poll in June -- approval ratings for Congress are even worse, at 23%.
That is the lowest level measured since Democrats won control of Capitol Hill in November, and matches the rating the Republican-led Congress had in June of 2006. Just 19% of respondents said they think the nation is headed in the right direction, while 68% believe it is on the wrong track -- levels not seen since 1992.
The fight has come to a head this week because senators have subpoenaed Sara Taylor, the former White House political director, to testify tomorrow about her involvement in discussions between the Justice Department and the president's aides about the prosecutor firings.
The White House has offered to make staffers available for questions, but only in private interviews with congressional investigators, with no transcript or other record. Democrats and some Republicans have rebuffed the offer.
It is the latest in a series of hearings, some of which have produced dramatic testimony about the inner workings of the administration, but none of which have so far uncovered any illegal behavior in the prosecutors' ousters. Key players in the controversy, however, have continued to point the finger elsewhere in response to questions about how the eight fired lawyers were selected, fueling demands for further scrutiny.
Ms. Taylor's attorney told senators during the weekend that she wants to testify, but will decline to do so because of the president's executive-privilege claim. Ms. Taylor's attorney asked that she not be held in contempt for her refusal to testify, and that instead sanctions be leveled at the White House.
There is potentially more at stake for the White House than the probe into the U.S. attorney firings, however. The Bush administration also could assert executive privilege soon in a range of other congressional investigations, including some -- such as the conduct of its warrantless wiretapping program -- that are even more sensitive to the White House, some legal experts say.
The recent history of congressional success with its subpoenas isn't encouraging for the White House. But the House and Senate face problems of their own.
Since 1975, 10 cabinet-level or senior executive officials have been cited for criminal contempt by committees or the full House or Senate for failing to produce subpoenaed documents. In each instance, the executive branch eventually complied with many or all the demands, forestalling the initiation of criminal proceedings -- and reflecting the executive branch's typical reluctance to fight such cases to the end.
While contempt cases involving senior officials have rarely made it to court in recent years, the House did vote in 1983 to hold former Environmental Protection Agency official Rita Lavelle in contempt for defying a subpoena to testify, according to a 2003 Senate report. She eventually was acquitted in court of the contempt charge, although she was convicted of lying to Congress about her management of the Superfund program.
But there is a complicating factor that might prevent the current fight from progressing further -- one that could thwart Congress's moves. Under the criminal-contempt procedures that Congress typically uses, a U.S. attorney has to bring the matter before a grand jury for action. It is an open legal question whether a Justice Department employee is required to bring a case before a grand jury when the White House has asserted executive privilege.
In fact, following a contempt vote against Anne Gorsuch Burford, a Reagan-era head of the Environmental Protection Agency, the Justice Department raised that very question. The documents in question ultimately were handed over before the case was litigated, leaving the matter unresolved.
As a result of the confusion, Congress could consider some novel alternative to the criminal-contempt citation. For instance, the Senate -- and possibly the House -- could bring something called a civil-contempt charge. There is also an unwieldy proceeding known as inherent contempt that hasn't been used since the 1930s, but it could be refashioned and modernized, some experts believe. |
