Former White House aide Michael K. Deaver is balking at testifying again before a House subcommittee investigating his lobbying activities, saying that such testimony would conflict with a two-week-old probe by an independent counsel, congressional sources said yesterday.
Deaver's attorney, Herbert J. Miller, has asked that panel Chairman John D. Dingell (D-Mich.) abandon plans to question Deaver in a second day of closed hearings, the sources said. They said Miller has requested a meeting with Dingell to argue that Deaver should be excused from testifying further because of the criminal investigation being conducted by independent counsel Whitney North Seymour Jr.
But some members of the Energy and Commerce subcommittee on oversight and investigations say they think that Deaver had already agreed to complete his testimony before the panel and that they are prepared to subpoena him if necessary, the sources said. Deaver did not complete his initial testimony May 16, a Friday, because most subcommittee members were leaving town for the weekend.
Deaver canceled several news interviews scheduled for that day on grounds that the hearings were not over. The second hearing was delayed until this month to accommodate a Deaver business trip to South Korea, but no date was set before Seymour was named May 29, prompting Deaver's attorneys to object to continuing the hearing.
The dispute surfaced yesterday as the subcommittee spent nearly three hours questioning former White House counsel Fred F. Fielding about his role in an administration inquiry into Deaver's lobbying. That inquiry and others led the Justice Department to seek the independent counsel, who is examining whether Deaver violated conflict-of-interest laws in resigning last spring as White House deputy chief of staff and later lobbying the administration on behalf of Canada, Puerto Rico and other clients.
Deaver's spokeswoman referred questions to Miller's office, which declined comment.
Dingell has said that Seymour's appointment would not affect his subcommittee's probe of Deaver, and congressional sources said the panel is likely to subpoena Deaver to testify if the impasse persists.
"In no way can the appointment of a special prosecutor push aside congressional responsibility to do vigorous oversight," said Rep. Ron Wyden (D-Ore.). "I think it would be derelict to suggest that our duties be put aside. The subcommittee has no intention of doing so."
Deaver's congressional testimony could be provided upon request to the independent counsel, and any inconsistencies or discrepancies with other witnesses' accounts could become part of the criminal probe. Dingell has often held hearings on matters under criminal investigation, saying that his subcommittee must determine the need for new legislation regardless of whether indictments are brought.
After 11 members questioned Fielding in closed session yesterday, Rep. Thomas A. Luken (D-Ohio) accused the former White House counsel of displaying "a great insensitivity, which places him in the same category as Mr. Deaver."
"I get the impression that in some of these cases people skipped Common Sense 101 in school," Wyden said. "Mr. Fielding certainly did. I think the president was poorly served."
But four GOP members said in a statement that Fielding's conduct had been "scrupulously ethical" and showed "no evidence of favoritism." They said the Dingell probe "is in danger of going out of control."
Fielding, now a Washington lawyer, could not be reached for comment. At issue in the hearing was whether he should have disqualified himself sooner than he did from an administration probe of Deaver because he had been approached about a possible job with Deaver's multimillion-dollar consulting firm.
Fielding has called the matter "a misunderstanding" and said he never seriously considered joining Deaver's firm. He has said he disqualified himself from the Deaver probe in early March "out of an abundance of caution" after Deaver sought a meeting with him on a possible job.
Fielding signed a White House memo Feb. 28 to the Office of Government Ethics, which was examining whether Deaver had violated federal law in representing Canada on the acid rain problem. The day before, William Sittman, vice president of Michael K. Deaver & Associates, had asked Fielding over lunch to consider joining the firm.
Fielding's memo contended that Drew Lewis, a special presidential envoy on acid rain, should not be considered a White House official. This was important because Deaver, who met with Lewis last October on Canada's behalf, was barred by law from contacting White House officials for one year after leaving his White House post.
Fielding's memo said Lewis received no support from the White House and should not be considered a White House official. But the General Accounting Office said the memo was inaccurate and that Lewis should be viewed as part of the White House.
In addition to the acid-rain controversy, Seymour is investigating whether Deaver violated the law by contacting then-White House national security affairs adviser Robert C. McFarlane last year in support of tax breaks for U.S. companies in Puerto Rico. Deaver was representing Smith, Barney, Harris, Upham & Co., which underwrites bonds in Puerto Rico.