Miers Steps Down As White House Gears Up for Battle

By Peter Baker and R. Jeffrey Smith
Washington Post Staff Writers
Friday, January 5, 2007

President Bush accepted the resignation of White House counsel Harriet Miers yesterday as he remakes his legal team to prepare for what aides expect to be a sustained struggle with a new Democratic Congress eager to investigate various aspects of his administration.

Miers, a longtime Bush loyalist whose nomination to the Supreme Court was withdrawn in 2005 as a result of conservative opposition, led an office that will oversee legal clashes that could erupt if Democrats aggressively use their new subpoena power. Bush advisers inside and outside the White House concluded that she is not equipped for such a battle and that the president needs someone who can strongly defend his prerogatives.

The White House did not announce a replacement but has settled on someone to take on the assignment, according to several advisers who did not disclose the name. Four other lawyers have been hired as associate counsels in recent weeks to fill vacancies, and White House officials have discussed expanding the office, which -- with a dozen lawyers -- is far smaller than it was under President Bill Clinton, who faced legal battles on multiple fronts.

The effort to form a new legal team anticipates a spate of congressional demands for information on politically sensitive topics such as whether officials authorized the abuse of U.S. detainees, whether the administration turned a blind eye to profiteering by politically connected contractors in the Iraq war, how the White House responded to Hurricane Katrina, and whether senior officials complied with the law in ordering heightened domestic surveillance.

At the Justice Department, lawyers in the Office of Legal Counsel have been meeting with counterparts from other agencies to discuss potential points of conflict with Congress and to map out legal strategies for responding to demands for documents and testimony, according to several officials. The department has also held internal meetings on this topic in recent weeks with representatives from the FBI and from Justice's other major components, one official said.

"They face the question of, to what extent you cooperate or protect presidential prerogatives and withhold documents," said H. Christopher Bartolomucci, a former Bush White House lawyer. "Potentially, it could be a period of conflict with the Hill. . . . It's not necessarily going to be a bloodbath, but it's certainly possible."

Republican advisers have been telling the White House to be ready for war, and many cited Miers as the wrong general. "The White House knew they needed to get a tough street fighter -- that's what this is about," said one such adviser, who spoke on the condition of anonymity to preserve access to the White House.

The advice, according to this person, could be summed up this way: "You guys better lawyer up, and lawyer up in the right way. You better understand the need and the peril and the urgency. . . . You need somebody as tough as [Clinton aides] Harold Ickes or Bruce Lindsey. Because they're coming for you."

Miers, Bush's personal lawyer in Texas, is popular in the West Wing and is admired for her hard work, loyalty and character. But since taking over last spring, White House Chief of Staff Joshua B. Bolten had privately expressed doubt that Miers, 61, was right for the job, current and former officials said.

When news reports at the time suggested that she might leave as part of Bolten's initial shakeup, Miers talked to Bush and kept her job, the sources said. After Democrats captured Congress in November, the issue was revisited and some Republicans were told before Thanksgiving that someone else would be brought in.

Miers had told colleagues that she planned to stay until the end of the administration, but after several conversations with Bolten in the past week, she agreed it was time to move on. "We're entering a new era here in the White House, and they both came to that conclusion," a senior administration official said.

White House spokesman Tony Snow praised Miers as "an extraordinarily wonderful human being" and a "ferocious defender of the Constitution" who is leaving because she has been in the White House for six years. In a letter to Bush released by the White House, Miers offered expansive praise for the president while never explaining her departure: "It is hard to leave the tasks at hand. They are gravely important, and I shall miss greatly the arena in which the battles of our times are being fought."

The White House plans to replace her with a lawyer from the outside. Speculation focused on former solicitor general Theodore B. Olson, but he said he had no intention of taking the job. "I'm not going to be replacing Harriet Miers," Olson said yesterday.

Sources said the White House hired a fourth new associate counsel just this week, Michael Scudder, a former federal prosecutor in New York who had been working at the Justice Department on national security issues.

The administration's decision to prepare for battle comes despite an effort by congressional Democrats to discourage public talk of an imminent clash. Mindful of their one-vote margin of control in the Senate and keen to retain the House and capture the presidency in 2008, Democrats say they are anxious to avoid appearing shrill or excessively partisan.

"I'm going to work on the assumption that there won't be a problem in getting information," said Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. "There has been [resistance] in the past, but we were in the minority. Now, if the committee requests information, [it] will be acting on behalf of the committee and they have a responsibility to respond. I'm not looking for a confrontation."

Talk of accommodation is undercut, however, by the fact that both parties have firm opposing positions on whether Congress has the right to peer closely into executive-branch deliberations and documents, especially on national security. Led by Vice President Cheney, the administration has long backed a legal theory that the Constitution gives the president considerably more authority than Congress and the judiciary.

In keeping with that view, the Justice Department on Dec. 22 spurned a request by then-incoming Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) for a memo signed by Bush authorizing the CIA to create secret detention facilities overseas. It also rejected Leahy's request for a Justice Department memo detailing the interrogation methods the CIA could use. A letter to Leahy signed by acting Assistant Attorney General James H. Clinger explained that "we are not able to disclose" operational details of the CIA program and said that the interrogation memo constituted "confidential legal advice."

Leahy expressed disappointment on Tuesday that the administration had "squandered another opportunity to work cooperatively with Congress." But Leahy did not say what he would do next, other than promising that his committee "will continue its efforts to obtain the information that it needs" for oversight.

Other Democrats said his cautious approach is in keeping with admonitions to incoming committee chairmen by Senate Majority Leader Harry M. Reid (D-Nev.) to avoid immediate confrontation. House Speaker Nancy Pelosi (D-Calif.) has issued similar warnings.

However, one sign that relations will be bumpy is a decision by House leaders to give Waxman's committee special authority to force administration officials to sit for depositions, a tool it last had under Republicans in the late 1990s. Waxman said he has not set a firm agenda but intends to focus on "waste, fraud and abuse," the government's response to Katrina, and actions taken by U.S. contractors in Iraq.

Senate Armed Services Committee Chairman Carl M. Levin (D-Mich.) is also interested in contracting waste in Iraq and plans to investigate what officials knew about the abuse of detainees, aides said. He has announced plans to hire three new investigators to examine these and other matters.

Staff writers Al Kamen and Dan Eggen contributed to this report.

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