Bush Demands Freedom to Torture

"The White House yesterday repeated its offer to allow Rove and other current and former senior aides to testify about the firings behind closed doors, not under oath and with no transcript. White House press secretary Dana Perino said the Justice Department would refuse to convene a grand jury if either the full House or the full Senate approved the contempt citations; that would leave Democrats unable to force the question of the limits of executive privilege into the federal courts."

The White House position, of course, exposes an amazing conundrum: That the same Justice Department whose politicization is being investigated is also in a position to hand out get-out-of-testifying-free cards.

Here's what Perino had to say at yesterday's press briefing: "[T]he Democrats should know the futility of trying to press ahead with a criminal case. It's long been understood that the Justice Department, in situations like these -- that the constitutional prerogative of the President would make it a futile effort for Congress to refer contempt citations to U.S. attorneys. The Department of Justice would not require a U.S. attorney to convene a grand jury or otherwise pursue a prosecution of an individual who carries out a President's instruction not to provide documents or testimony on the basis of the President's assertion of executive privilege.

"And it's interesting that the Chairman of the Judiciary Committee, who called for this vote today, actually summed it up back in September of 1999, when he said exactly that -- that it would be futile in order to request certain documents or testimony. And I can give you the full citation later."

John Bresnahan reports for Politico.com that Perino later explained: "Senator Leahy may have summed it best in September 1999 when he said the following: 'The criminal contempt mechanism, see 2 U.S.C. section 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony.'"

But what's at issue today is whether Bush's assertion of executive privilege here is supported by the facts -- and whether the Justice Department is able to take an objective position on the issue.

In a November 29 memo about this assertion of privilege, Leahy found that the "complete lack of particularity of the White House claims, including the lack of a privilege log or any specific factual basis for the privilege claims, makes the scope of the claims improper." And he called the assertion of executive privilege on behalf of the president "surprising in light of the significant and uncontroverted evidence that the President had no involvement" in the firings of the U.S. Attorneys.

David Stout writes in the New York Times that "in practice, disputes between Congress and the White House in which the specter of contempt charges has been raised have typically been settled well short of the jailhouse door."

But the White House so far has categorically refused to negotiate.

Mukasey's View

Attorney General Michael Mukasey may end up playing a key role here, and one that may test his independence from the White House.

During his confirmation hearings, Mukasey indicated that he would back the White House position. But the linchpin for him was that this assertion of privilege was supported in a letter from the department's Solicitor General Paul D. Clement, itself based on a review by the Office of Legal Counsel.

Mukasey said it would be untenable for the Department of Justice "to prosecute someone who followed the advice that originated with the Department of Justice."