By Jonathan Weisman and Paul Kane
Washington Post Staff Writers
Thursday, March 22, 2007
A House panel authorized subpoenas yesterday for top White House and Justice Department aides, including White House counselor Karl Rove, setting up a constitutional clash with the Bush administration over the U.S. attorneys investigation.
With the Senate Judiciary Committee poised to authorize a similar batch of subpoenas today, the House Judiciary subcommittee on commercial and administrative law also issued a broad-based subpoena for documents and e-mails related to the prosecutor firings from Rove, Attorney General Alberto R. Gonzales, White House Chief of Staff Joshua B. Bolten, former White House counsel Harriet E. Miers and a trio of other aides.
The subpoenas served as an act of defiance toward President Bush, coming less than 24 hours after he warned Democrats against engaging in a "partisan witch hunt" and vowed to embark on a legal battle to shield his staff from public testimony under oath.
"We must protect the interest of the Congress and the American people by maintaining the option to move forward with our investigation with or without continued cooperation from the administration," said House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
But White House officials held firm to Bush's offer to turn over thousands of pages of correspondence and to make the aides available only for private interviews and not under oath, with limited questions and no transcriptions. White House spokesman Tony Snow called that offer "extraordinarily generous."
The choice facing Congress is plain, he said: "You want to get at the truth? Or do you want to create a political spectacle?"
If the White House refuses to comply, the judiciary committees will meet in coming weeks to decide whether to issue citations for contempt of Congress. If they do, the full Senate and House would have to follow suit.
That would set in motion the extraordinary spectacle of Congress enlisting the U.S. attorney for the District of Columbia to impanel a grand jury to seek the indictment of administration officials over their refusal to testify on the firings of eight of his colleagues.
"A U.S. attorney would feel a great deal of pressure to say, 'The law is the law, and I will follow the law,' " said Charles Tiefer, a former House counsel now at the University of Baltimore Law School. "But in this case, the U.S. attorney also would be expected to follow the instructions of his president."
According to the Congressional Research Service, 10 Cabinet-level or senior executive officials have been cited for contempt of Congress since 1975 for failure to produce documents subpoenaed by a subcommittee or a full committee. In each instance, the White House substantially or fully complied before criminal proceedings began.
Only once has a showdown over congressional subpoenas reached the level of a chamber of Congress issuing a contempt citation, Tiefer said. That came during the scandal surrounding Anne Gorsuch Burford, President Ronald Reagan's first Environmental Protection Agency director. Even in that case, then-U.S. Attorney Stanley Harris dragged his feet on the convening of a grand jury until the House and White House resolved the matter.
Indeed, regardless of Bush's insistence that his current offer would grant Congress "unprecedented" access to his staff, legal observers expect Congress and the White House to reach a deal more to the Democrats' liking. Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee, cited nine instances during the Clinton administration when White House counsels testified before congressional committees or were deposed under oath. In three other instances, White House chiefs of staff appeared before committees to testify on Clinton-era scandals or were deposed under oath.
The most likely comparison to the current showdown came in 1998, when the GOP-run Government Reform and Oversight Committee, as the panel was then known, voted along party lines to cite then-Attorney General Janet Reno as being in contempt of Congress for her refusal to turn over internal Justice Department memos regarding a sprawling campaign finance investigation. The Justice Department then offered a staff briefing on the memos, and the House never acted on the contempt citation.
Republicans involved in those Clinton-era clashes said their repeated demands for White House testimony should not be compared to Democrats' demands on the matter of the U.S. attorneys.
"There's a big difference between 'We want to hear from people about why they're not able to pursue criminal wrongdoing' and 'We just want to hire and fire whoever we want to, and such personnel decisions are our business,' " said Mark Corallo, a top aide to the Government Reform and Oversight Committee during the Clinton years.
Philip Schiliro, Waxman's chief of staff, said the Republican-controlled committee was not that restrained. In one incident, he said, then-White House Chief of Staff Erskine Bowles was deposed on his knowledge of Clinton's holiday-card list.
For now, Republicans said yesterday, the president's tough stand has stanched the bleeding in the prosecutors controversy. Rep. Chris Cannon (Utah), the top Republican on the House Judiciary subcommittee on commercial and administrative law, attacked the "show trial" nature of the investigation. "The only purpose of subpoenas issued to the White House now is to fan the flames and photo ops of partisan controversy," he said.
Senior Republicans on the Senate Judiciary Committee had lunch at the Justice Department with Gonzales, during which he assured the group that none of the firings was designed to affect "any ongoing investigation" regarding corruption, according to Sen. Jon Kyl (Ariz.). Kyl also warned that Democrats would be in for a long legal battle over subpoenas.
Staff writer Michael A. Fletcher contributed to this report.