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Conflict Looms Over Executive Privilege
White House tries to rebuff attempts to subpoena officials as Democrats try to learn who authorized U.S. Attorney firings
Legal Times
June 18, 2007
White House counsel Fred Fielding
Image: Stacey Cramp/Legal Times
Now it's Fred Fielding's move.
Congressional Democrats have always believed that the Justice Department's plan to fire eight U.S. Attorneys began in the White House, and last week they proved willing to take their investigation to its doorstep by subpoenaing two former aides to President Bush.
The White House has yet to say whether it will assert executive privilege over the testimony sought from its former public affairs director, Sara Taylor, and former White House counsel and one-time Supreme Court nominee Harriet Miers.
But Fred Fielding, the White House counsel, hasn't budged from his first response to congressional inquiries in March. His position is simple: no transcripts, no oath and no public testimony -- and any questions must be restricted to discussions between White House officials and the Justice Department. Internal White House deliberations are off-limits.
Yet, many legal observers say, the subpoenas are more likely to force the White House to find some sort of middle ground -- even if it takes a protracted legal fight to get there.
"A lot of this on both sides is face-saving," says Stanley Brand, a defense attorney who served as counsel to the House of Representatives during a major fight over executive privilege in the Reagan administration. "The question is going to be, can they fashion some sort of compromise?"
Miers and her attorney, George Manning of Jones Day, did not return phone calls and e-mails. But Taylor's attorney, W. Neil Eggleston, a former Clinton White House lawyer and now a partner at Debevoise & Plimpton, indicated in a statement that his client is interested in working with Congress. "She is hopeful the White House and the Congress are quickly able to work out an appropriate agreement on her cooperation with the Senate's proceedings," Eggleston said.
Either way, congressional Democrats say they are dedicated to determining the answers to the fundamental questions: Who authorized the firings and why were the U.S. Attorneys put on the final list?
"The breadcrumbs in this investigation have always led to 1600 Pennsylvania," Democratic Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said in a statement. "This investigation will not end until the White House complies ... so that we may get to the bottom of this."
INSIDE JOB?
Congressional Democrats have known for months that White House officials played a role in developing the firing plan and Justice's response to it. As early as February 2005, Miers asked D. Kyle Sampson -- then the chief of staff to Attorney General Alberto Gonzales -- in an e-mail whether it was possible to fire all 93 of the U.S. Attorneys nationwide.
Even Karl Rove, President George W. Bush's chief strategist, appears to have been involved in this discussion, e-mails suggest. And Sampson, who spearheaded the effort in the Justice Department, sent draft lists to White House officials at least half a dozen times over the subsequent two years.
But documents disclosed last week by the Justice Department suggest even deeper involvement by the White House.
One of the key lines of questioning for Democrats will be the role those officials played in shepherding J. Timothy Griffin to the slot then held by U.S. Attorney H.E. "Bud" Cummins III in the eastern district of Arkansas. E-mails indicate that both Taylor and another close associate, J. Scott Jennings, were closely involved in appointing this former Rove aide. And according to testimony and e-mails, Taylor, who worked on both Bush presidential campaigns and has been at the White House since the start of the administration, advocated using the attorney general's appointment authority to bypass Senate confirmation for Griffith.
Congress will also want to know whether prosecutors' failure to investigate voter fraud cases played a role in their dismissal. Key to this is whether Rove helped devise the list, particularly in the choice of David Iglesias, then the U.S. Attorney for the District of New Mexico, who was added in late 2006. Testimony from Gonzales and Sampson indicate that Rove relayed concerns that the prosecutors in Iglesias' district were not pursuing voter fraud cases vigorously enough.
It's unclear, however, which way all the shots were called. Miers, for one, asked Sampson how to respond to queries about the firings. "Should I gleen [sic] from this that there will be a usual process [in replacing the nominees]?" she wrote Sampson in a Jan. 7, 2007, e-mail, released to Congress last week.
But she was also concerned about smearing the fired U.S. Attorneys, at least initially. "I would really like to hear one precedent where we have been willing to discuss negatives about a person that is comparable to this situation," she wrote to her deputy, William Kelley, on Jan. 16. "The individuals aren't saying anything public. Senators are. Then we are going to go out and say negative things about the people?"
Taylor, too, was critical of the post-firing public relations actions. After media reports that then-Deputy Attorney General Paul McNulty had cited to congressional investigators the White House's involvement in appointing Griffith, Taylor berated Sampson. "Why would McNulty say this? This has been so poorly handled on the part [of the] DOJ," she wrote in a Feb. 16 e-mail.
Miers and Taylor are not the only officials who may become ensnared in this fight. Congress has already authorized subpoenas for three other White House officials -- Rove, Jennings and Kelley, who recently announced his resignation. But the probe continues to focus on Gonzales. Justice Department investigators told Congress in a letter last week that they are looking at whether Gonzales tried to influence former aide Monica Goodling's testimony before the Senate last month.
There are other wild cards, too. Both McNulty and Acting Associate Attorney General William Mercer are scheduled to appear before the Senate Judiciary Committee later this month. And the committee has set a hearing to question current and former Civil Rights Division attorneys on the alleged politicization of hiring and prosecution in the section.
BATTLE LINES
But the answers to these questions could be hard to come by if the White House decides to claim executive privilege over the subpoenas.
Such a move would mean the House and the Senate could vote to hold the individuals in contempt. If that measure passes, they could refer the case to the D.C. U.S. Attorney, now Jeffrey Taylor, a former counselor to Gonzales. But the district U.S. Attorney is not required to prosecute such cases -- and in the past has refused to do so. (Taylor may also be required to recuse himself, given his close ties to the situation.) Theoretically, the Senate could hold the individuals in civil contempt, but that power has never been used, according to Charles Tiefer, a University of Baltimore School of Law professor and former counsel to the House. And using a power called inherent contempt, the House or the Senate could hold individuals in the congressional jail, though that hasn't happened since 1935, he says.
Technically, former White House officials have a choice whether to comply with an assertion of executive privilege. But, says the district defense attorney Solomon Wisenberg, "if the president's lawyer calls you up and says you're violating a privilege if you talk, most people in that situation don't want to have any liability or trouble."
And some say the White House may not prevail on this claim. "There is no blanket protection for all information about the White House," says Beth Nolan, former White House counsel to President Bill Clinton and now a partner at Crowell & Moring. "It's not in a black box."
Yet any fight over executive privilege could get messy, and Fielding knows this better than most: He was involved in the most significant battle of its kind to date.
In 1982, then-Rep. Elliott Levitas, D-Ga., wanted documents about the enforcement of Superfund cleanup sites from the Environmental Protection Agency. The agency refused, so the House subpoenaed the documents and the EPA administrator, Anne Gorsuch Burford.
The Reagan White House claimed executive privilege, and the fight began. The House held Burford in contempt, but when it referred the case for criminal prosecution, then-D.C. U.S. Attorney Stanley Harris refused to act. Instead, he filed suit against the House, alleging that the subpoena violated the Constitution. The suit was eventually thrown out, but that left Levitas back at the negotiating table with Fielding, who was in his first run as White House counsel.
There were many meetings and late-night calls, and the result was a compromise. Congress was able to review the documents, but they were then returned to the executive branch.
"In large part, that was due to the efforts of Fielding seeking a practical solution," Levitas says.The question is whether Fielding will be able to find one this time around.
