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."
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.
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.