New Privilege Claim by Bush Escalates Clash Over Firings

By Peter Baker and Dan Eggen
Washington Post Staff Writers
Tuesday, July 10, 2007

President Bush's move yesterday to block congressional testimony by two former aides provoked immediate condemnations from Democratic lawmakers and escalated a confrontation between the White House and Capitol Hill over the dismissals of nine U.S. attorneys.

White House counsel Fred F. Fielding informed lawmakers in a letter yesterday that Bush was asserting executive privilege for the second time in two weeks regarding requested testimony by former counsel Harriet E. Miers and former political director Sara M. Taylor about the prosecutor firings.

Fielding wrote that Bush was acting "to protect a fundamental interest of the presidency" by preserving the confidentiality of internal deliberations, including communications "with others inside and outside the Executive Branch."

Fielding also rejected a demand for a more detailed accounting of Bush's privilege claim.

The decisions pushed Congress and the executive branch closer to a courtroom showdown over the limits of a president's power to shield deliberations by his staff. Democrats accused the White House of stonewalling and reiterated that they would seek contempt citations if documents and testimony are not provided.

"The White House continues to try to have it both ways -- to block Congress from talking with witnesses and accessing documents and other evidence, while saying nothing improper occurred," said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee.

His House counterpart, John Conyers Jr. (D-Mich.), said that "contrary to what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally."

Fielding repeated his offer to let Congress question White House aides behind closed doors, not under oath, and without transcript or recording, an approach Democrats have rejected.

The Supreme Court has recognized the existence of a president's executive privilege but has ruled that the privilege is not absolute and can be overcome depending on the circumstances.

When the White House and Congress have fought over such subpoenas in the past, they have typically cut a deal before the courts ruled on the validity of a particular privilege claim. As a result, there are limited precedents to judge how far a president or lawmakers may go.

In the current case, Fielding said Bush has "directed" Miers and Taylor not to testify before the House and Senate judiciary committees this week. Democrats want to question both about their involvement in last year's firings of federal prosecutors, which have stirred a furor on Capitol Hill, even among some Republicans.

Bush's decision puts Miers and Taylor in an awkward position because they now face the choice of defying the wishes of a president they both worked for or risking criminal contempt citations by Congress. Taylor's attorney, W. Neil Eggleston, said in a letter to Fielding and Senate Judiciary leaders over the weekend that Taylor is willing to testify but is unfairly being put in the middle of "an unseemly tug of war."

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