Bush Claims Executive Privilege on Subpoenas

Yesterday was the deadline for turning over the documents, and White House officials and lawmakers said efforts to achieve a compromise had stalled.

"Negotiations are not taking place, and the counsel's letter is an invitation to resume negotiations," said a senior administration official who provided a background briefing for reporters.

But it was unclear yesterday what there is to negotiate. Bush was described as dug in on the principle at stake, and lawyers familiar with his strong views about presidential powers speculated that he would fight more vigorously than his predecessors to keep Congress from obtaining what it wants.

The White House said yesterday's decision was the second time this president has invoked executive privilege. The first came in 2001, when Bush spurned a congressional subpoena requesting certain documents prepared for Attorney General Janet Reno during the Clinton administration.

The ranking Republican on the Senate Judiciary Committee, Arlen Specter (Pa.), who has sided with Democrats through most of the investigation into the U.S. attorneys' removal, said he thought Democrats should take Bush's offer of untranscribed interviews.

"If it's the president's way or some other way two years from now, I'll take the president's way," Specter told reporters, warning that a legal fight for the subpoenaed documents would prove so protracted that it could outlast Bush's remaining 1 1/2 years in office.

Although the senior administration official said the White House is confident its position is sound, constitutional scholars cautioned that this area of law is so unsettled that it is impossible to predict the outcome if the matter ends up in court.

Cass R. Sunstein, a liberal-leaning law professor at the University of Chicago, called the White House's arguments, set forth in a letter to Bush from Solicitor General Paul D. Clement, "more than respectable." But Sunstein said many of Clement's points fall within "a constitutional gap" on which the Supreme Court has not ruled.

A key question, Sunstein said, is whether executive privilege covers only a president, as the Supreme Court ruled in a 1974 case that required President Richard M. Nixon to turn over private tape recordings during the Watergate investigation. Since then, Sunstein said, the U.S. Court of Appeals for the District of Columbia Circuit has ruled in a Clinton-era case that documents involving White House aides may also be protected, although the high court has not considered that question.

A second significant question, Sunstein said, is whether Congress can demonstrate that it has a compelling need for the White House documents. The Supreme Court has held that such a need can overwhelm executive privilege, particularly if documents are vital to prove criminal or ethical wrongdoing.

Anticipating this debate, the White House's letters yesterday emphasized that the administration has already turned over to Congress thousands of pages of documents, some of which refer to interactions between Justice officials and aides to Bush.

In the Senate, leadership aides said the Judiciary Committee is trying to determine whether the administration, through its letters from Fielding and Clement, had fulfilled the first step necessary for Congress to enforce a subpoena, by providing a detailed explanation of which documents it was withholding and the legal basis for doing so.

Once that step is taken, a congressional committee chairman can rule on the validity of the privilege claims. If they are ruled invalid, the committee can repeat the directive to comply. If a president continues to balk, the committee can find the president in criminal contempt, and the issue would then be voted on by the full House or Senate. If a criminal citation is approved by either house, the matter is referred to a U.S. attorney with a recommendation to issue an indictment.

Lanny J. Davis, who was a lawyer in the Clinton White House, said that while Bush is evidently sincere in his desire to keep receiving unfettered advice, he risks losing much by taking the matter to court. "The irony is that by fighting the weakest case through the courts, they may end up weakening the very principle of executive privilege that they have so stubbornly and understandably defended," Davis said.

Washintonpost.com staff writer Paul Kane contributed to this report.