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."
Lee A. Casey, a lawyer who worked at the Justice Department during the Reagan administration, said, "I don't think the claim here is broader than what has been made before." Sunstein said Clement's memo was a "highly competent, but not an objective, analysis" that relied on holdings of previous administrations rather than judicial precedent.
But most legal scholars have emphasized the murkiness of this area of the law. That is "because usually they work it out, rather than deciding it in the courts," said Dawn Johnsen, who worked in the department's Office of Legal Counsel in the Clinton administration and now teaches law at Indiana University.
Clement told Fielding that the privilege extended to Miers and former White House political director Sara M. Taylor and said that it would be "very difficult, if not impossible" for the officials to separate information already disclosed by the White House from that "derived from other privileged sources."
Although Casey said Fielding's advising Miers not to attend the House hearing was a "tactical" move, others were more surprised. "It's very hard to justify [Miers's] nonappearance within the contours of executive privilege as that doctrine is widely understood," said Michael J. Glennon, a law professor at Tufts University.
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said the panel must pursue a contempt case or risk sending the message that witnesses can ignore its instructions. "Are congressional subpoenas to be honored, or are they optional?" Conyers asked.
In the Miers case, the next step could be a finding of contempt by the full Judiciary Committee, followed by a vote to issue a contempt citation by the full House. That might in turn trigger grand jury deliberations under the supervision of the U.S. attorney for the District of Columbia.
Miers finds herself in a more precarious legal situation than Taylor, who chose to respond to a similar subpoena from the Senate Judiciary Committee by appearing for testimony on Wednesday while refusing to answer many questions about White House deliberations. Taylor testified that she never discussed the prosecutor firings with Bush and that, as far as she knew, he was not involved in the dismissals.
washingtonpost.com staff writer Paul Kane and Post research editor Alice Crites contributed to this report.