Bush won't let staff testify

WASHINGTON — WASHINGTON -- President Bush's decision to defy congressional demands for documents and testimony in the U.S. attorneys case leaves Democrats with a difficult choice of lowering their sights in the investigation or facing a long and uncertain court fight.

The White House told congressional leaders yesterday that Bush was asserting executive privilege in response to the request for access to senior officials and documents about the firings of eight U.S. attorneys last year. The sweeping declaration said that turning over such evidence would harm the president's ability to obtain candid advice from aides.


The apparent unwillingness of the White House to engage in the sort of political compromise that has marked such subpoena battles in the past has put the tug of war in uncertain terrain. Congress is left having to decide whether to move forward with contempt proceedings against Bush administration officials or accept a limited offer of cooperation that White House counsel Fred Fielding renewed yesterday in a letter to congressional leaders.

Bush has offered to make White House officials, including political strategist Karl Rove, available to Congress, but only on condition that the meetings be closed and with no transcripts.


"Whether out of arrogance or principled conviction, the current administration has seemed all but oblivious to the political downside of insisting on executive branch secrecy," said Peter Shane, an expert on executive privilege at Ohio State University's law school. "Given that no one in the White House is seeking re-election, it is unclear whether they will compromise, short of receiving some extraordinary pressure from congressional Republicans who may be more concerned than the president with appearing to represent the 'party of cover-up.'"

The subpoenas are part of an investigation into whether the Justice Department and the White House orchestrated the firings of several top prosecutors last year for improper political reasons. Democrats believe that some of the U.S. attorneys were fired because of disagreements over public integrity or voter-fraud cases that could have aided Republicans.

The Bush administration has said that while the firings might have been handled indelicately, they were motivated by differences over law enforcement policy and other legitimate factors. The prosecutors, as presidential appointees, can be fired at will, officials point out.

Citing the "exclusive character of the president's appointment and removal power," Fielding said Congress had failed to make a compelling case for greater White House cooperation.

"The president, no less than members of Congress and federal judges, needs the protection of a principle that shields his close advisers from open-ended inquiry by another branch of government," Fielding wrote, in a letter to Democratic Sen. Patrick J. Leahy of Vermont and Rep. John Conyers Jr. of Michigan, the chairmen of the Senate and House Judiciary Committees.

While acknowledging their missteps, administration officials say the probe has become a political exercise, with no hard evidence of wrongdoing that would justify penetrating executive secrecy.

Fielding said Bush was instructing former White House counsel Harriet E. Miers and political operative Sara Taylor to decline to testify about the firings. He also declined to provide a log of documents that the White House was withholding and that had been requested by lawmakers to assist them in deciding whether the privilege claims were justified.

Taylor, subpoenaed to testify before the Senate Judiciary Committee tomorrow, and Miers before the House panel Thursday, are expected to appear as scheduled. But they are expected to assert presidential privilege and to decline to comment about the firings, congressional aides said.


Sen. Arlen Specter, a Pennsylvania Republican, said yesterday that he favors a compromise that would give lawmakers access to at least some information. A court battle, he said, "is going to outlast the president's term."

For now, lawmakers seem to be working on duel tracks: keeping the door open for further negotiations while laying the groundwork for court action.

To proceed with a contempt action would require a majority vote of the judiciary committee issuing the subpoena as well as the full House or Senate. Under the law, the matter would then be referred to the U.S. attorney for the District of Columbia, who would make the decision whether to prosecute.

It is unclear who Congress would want to hold in contempt.

The lawyer for Taylor, 32, who left the White House this year, has made the case that it would be unfair to hold her in contempt.

"She has two untenable choices. She can follow the president's direction or she can attempt to work out an accommodation which will put her at odds with the president," W. Neil Eggleston wrote to Leahy last week. "We urge the Senate not to use Ms. Taylor as the focus of the constitutional struggle."


Miers, who left the administration in February 2005 to return to law practice in Dallas, could not be reached for comment. While she was involved in early discussions about replacing the prosecutors -- at one point, suggesting firing all 93, the White House has said -- she left long before any were actually dismissed.

Some legal experts say Congress has a strong case if the privilege issue ends up in court.

"Once the White House people go away from purely giving confidential advice and start to administer or run a department, then I think they begin to lose their immunity," said Louis Fisher, an expert on executive privilege at the Library of Congress. "Otherwise, Congress can never get to the bottom of anything."

Richard B. Schmitt writes for the Los Angeles Times.