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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."

Eggleston did not respond to a telephone message yesterday. He has indicated to the Senate Judiciary panel that Taylor will appear at a hearing scheduled on Wednesday but will refuse to answer questions, according to committee aides.

Mark J. Rozell, a George Mason University political scientist and author of "Executive Privilege," said the Bush administration's claim in this case "goes way beyond the proper scope of executive privilege" because it is not limited to specific discussions and it amounts to "a blanket prohibition on former aides discussing anything at all."

Rozell and other legal experts also noted that the White House has little real power to prohibit Miers or Taylor from testifying.

"The leverage primarily is the sense of loyalty that former aides may feel to their president, period," Rozell said. "I don't believe there is any specific legal sanction that the White House can impose on former aides if they decide they want to talk."

Cass R. Sunstein, a University of Chicago law professor, said the administration's privilege claim is less persuasive if it includes communications with people outside the executive branch, as Fielding's letter indicates.

In addition to moving to block testimony by Miers and Taylor, Fielding refused a demand by Leahy and Conyers that he produce a more detailed justification of Bush's June 28 assertion of executive privilege over documents sought by lawmakers. Leahy and Conyers had demanded that the White House produce a log listing each document withheld, including its source, subject matter, date and recipients -- a request they said was routine.

Fielding wrote that he has already explained the legal basis for the previous privilege claims and said he would not turn over such a log "because it represents a substantial incursion into Presidential prerogatives and because, in view of the open-ended scope of the Committees' inquiry, it would impose a burden of very significant proportions."

The prosecutor case is just one of several fights with Congress over claims of executive privilege.

In a letter yesterday, for example, Conyers asked Bush to waive any privilege claims and let White House aides testify about the decision to allow I. Lewis "Scooter" Libby to avoid imprisonment in the CIA leak case. The House Judiciary panel is holding a hearing this week on Bush's decision to commute the 30-month prison sentence imposed on Libby, former chief of staff to Vice President Cheney.

White House spokesman Tony Snow told reporters that Conyers's letter seems to concede the administration's view that clemency powers and executive privilege are presidential prerogatives.

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