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Avert damaging fight over executive privilege

The White House last week asserted executive privilege in rejecting congressional subpoenas for documents regarding the controversial firings of nine U.S. attorneys who served in the administration of President Bush. This threatens to precipitate a constitutional fight between the legislative and executive branches.

Today, as we celebrate the birth of our nation - ingeniously established with three equal branches of government and checks and balances that limit the power of each branch - we should keep in mind that a constitutional confrontation would be bad for the president, bad for Congress and bad for the country. Instead of digging in to their entrenched positions, both sides should creatively seek solutions for the common good.

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Last month, Congress subpoenaed former White House counsel Harriet E. Miers and political director Sara Taylor for testimony and White House Chief of Staff Joshua B. Bolten for documents involving the U.S. attorney dismissals. The subpoenas culminated several months of negotiations between Congress and the White House over the information that lawmakers requested. This followed the White House's offer, in March, to make the officers available for private interviews without an "oath, transcript, subsequent testimony or the subsequent issuance of subpoenas."

For three months, the president and administration officials have continually invoked the notions of a "reasonable offer" and executive privilege, contending that Mr. Bush and future presidents must have candid staff advice. The chief executive and his aides have promised to oppose lawmakers - in court, if need be - over subpoenas, and admonished Congress against political grandstanding. Last week's White House rejection of the subpoenas reiterated these arguments. For those same three months, the Senate and House Judiciary Committee leaders have rejected the White House offer, asserting that testimony must be given under oath and on the record for real accountability.

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The White House contended that "issuing subpoenas and seeking to compel the disclosure of information in lieu of accepting the president's reasonable offer of accommodation has led to confrontation." Press secretary Tony Snow sharply criticized Congress for "what appears to be a strategy of destruction, rather than cooperation." Sen. Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, denounced the White House response as "a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances."

If the White House does not relent, legislators might seek to hold White House officials in contempt of Congress, triggering a constitutional crisis.

Lawmakers and the White House should step back from the precipice and find a way to reach agreement. For example, Congress could accept the offer of private interviews and see whether they suffice - an approach that Sen. Arlen Specter championed last week. The White House might consider having the witnesses testify on the record, absent oaths, and sealing that information for some time. Resolution of this dispute is limited only by the imagination of legislators and the White House.

Failure to negotiate a reasonable accord entails political and other risks for lawmakers and the White House. For instance, congressional enforcement of a contempt citation in federal court would take a long time. Senator Specter warned that "this investigation is lagging very, very badly," and while it drags on, "Attorney General [Alberto R.] Gonzales continues to serve." The White House may concomitantly appear to be hiding information, if it persists in opposing legislative requests.

Lawmakers and Mr. Bush should strive to find common ground that enables him to protect White House prerogatives and Congress to promote its valid interest in the questionable hiring and dismissal of U.S. attorneys.

Carl Tobias is the Williams professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.


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