Obama Team Expected to Broker Deal on Subpoenas Over U.S. Attorney Firings

Lara Jakes Jordan

The Associated Press

November 13, 2008

A yearslong legal dispute between the White House and Congress over testimony by President Bush's aides probably will be resolved under the incoming Obama administration, former government lawyers from both political parties agreed Wednesday.

"Historically, those sorts of issues get worked out by negotiation," said Robert Litt, a former prosecutor and top Justice Department criminal lawyer during the Clinton administration.

He added: "It's sort of like a sumo match -- you have people stomping around the ring and making loud noise. And, at the end, they sit down and work out some kind of unsatisfactory compromise."

Former Reagan White House Counsel Arthur B. Culvahouse Jr. agreed there'd likely be a deal stuck between the two sides in a Democratic detente that has eluded the outgoing GOP administration.

"It'll probably be worked out by compromise," Culvahouse said. He and Litt spoke at a Brookings Institution discussion about legal policy in the Obama administration.

At issue is whether the Democratic-led Congress can force top Bush aide Joshua Bolten and former aide Harriet Miers to testify in front of lawmakers or hand over documents about the 2006 firings of nine U.S. Attorneys.

Democrats say the firings, which led to the resignation of former Attorney General Alberto Gonzales last year, were politically motivated. That charge was bolstered by an internal Justice Department investigation, which in September found "substantial evidence that partisan political considerations played a part in the removal of several of the U.S. Attorneys."

The Justice Department has maintained that Congress can't force top White House aides to testify because it infringes on the executive branch's independence.

A federal appeals court last month refused to immediately enforce the House Democrats' subpoenas, ruling that time will run out on this year's congressional session before the thorny legal skirmish could be resolved.

Litt predicted the Democrats will move quickly next year to push forward with the subpoenas. He called it reasonable to believe that House Speaker Nancy Pelosi will ask the White House to reconsider its use of executive privilege in the dispute.

On another topic, Litt and Culvahouse said Obama probably will seek to declassify more Justice Department legal memos -- as well as documents across the federal government -- than did the outgoing GOP administration. It's safe to assume that "a serious review of the classification system is on the table," Litt said.

Culvahouse added, "It's simply good government for (legal memos) to be open to review as much as possible."