Hill Panel Initiates Contempt Charges Against Miers

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By Robert Barnes and Dan Eggen
Washington Post Staff Writers
Friday, July 13, 2007

A court battle over President Bush's broad but largely untested claims of executive privilege grew more likely yesterday when a House panel took the first step toward bringing contempt charges against former White House counsel Harriet E. Miers.

Miers had been subpoenaed to appear before a House Judiciary subcommittee to testify about her role in last year's firings of nine U.S. attorneys, but declined to attend after Bush's White House counsel advised her not to appear. The snub provoked a 7 to 5 vote by the House panel contesting the Bush administration's claim of executive privilege.

Tough words from both sides raised the possibility that the present clash might not be resolved in a fashion similar to other executive privilege disputes, through last-minute compromise.

White House counsel Fred F. Fielding has refused to accommodate any additional demands for records or testimony from White House officials about the decision to replace the prosecutors last year and told Miers that the president did not want her to testify before the committee.

The decisions, he said in a letter to the chairmen of the House and Senate Judiciary committees, rest "upon a bedrock presidential prerogative" that confidentiality is imperative for the president to "perform his constitutional duties." That extends to all who advise the president, he said.

Legal experts and those who have worked in previous administrations say the Bush administration's claims may not be more broad than those asserted by other presidents. But they said the administration's position rests largely on a limited number of court decisions and on assertions made by previous administrations that were never fully tested in the courts.

"They [Bush officials] could argue that their claims are no different from ones that President [Bill] Clinton made, but there are also those who would argue that Clinton took the principle of executive privilege too far," said Mark J. Rozell, a George Mason University professor who has written a book on the subject.

University of Chicago law professor and constitutional expert Cass R. Sunstein described the doctrine of executive privilege as a "constitutional wilderness,'' noting that a Supreme Court decision confirming the doctrine also said it could be trumped by "weighty and legitimate competing interests."

Since then, the Court of Appeals for the D.C. Circuit has provided more guidance, Sunstein said. It has extended the privilege beyond the president and vice president to the White House generally, he said, and has made clear that Congress cannot overcome the privilege just with generalized concerns about the White House's actions.

Fielding's letter to the House and Senate committees investigating the firings cite a memo sent to him by Solicitor General Paul D. Clement. "I do not believe that the committees have shown a 'demonstrably critical' need for internal White House communications on this matter," Clement wrote.

Clement said that the administration has provided Congress with thousands of pages of documents and testimony from other administration officials. He also said it is "not at all clear" that lawmakers have the right to investigate the president's hiring or firing of U.S. attorneys and said that executive privilege in the matter extends widely.

"That the communications involve individuals outside the executive branch does not undermine the president's confidentiality interests," Clement wrote. "The communications at issue occurred with the understanding that they would be held in confidence."


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