A White House Wrapped in Secrecy

The White House's assertion of executive privilege this morning in rejecting subpoenas for documents and testimony related to last year's firings of U.S. attorneys shows that President Bush may be more concerned about keeping his staff's deliberations secret than he is about creating the appearance that he has something to hide.

Dragging things out has already emerged as the White House's strategy of choice with this investigation. Today's move, while sparking a genuine constitutional showdown, also suggests it will be a long, drawn-out showdown.

Actually, the greater and more immediate threat to the White House and its culture of secrecy may come from a different set of subpoenas: The ones issued by the Senate Judiciary Committee yesterday demanding documents related to the administration's warrantless wiretapping program.

In their letters to Congress regarding the U.S. attorney subpoenas, White House and Justice Department lawyers this morning took an expansive view of a privilege that many scholars say is actually quite limited. (Here's the letter from White House Counsel Fred Fielding; here's the supporting letter from Solicitor General Paul D. Clement.)

But Fielding also made his case based in part on the material being requested: "The doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications," Fielding wrote.

Making that latter argument in response to yesterday's warrantless wiretapping subpoenas will be vastly harder.

There is no way that yesterday's request can be dismissed as a partisan fishing expedition. The subpoenas were approved by members of both parties. They call for basic information about the legal reasoning behind an important government program that appears to violate federal law. They request information that is necessary for the committee to assess the administration's requests to rewrite the applicable laws. And they properly ask for some explanation of why the president blocked an inquiry by the Justice Department's own ethics office.

For six years, the White House has simply waved off pesky questions from the media and Congress. And it is the wiretapping subpoenas, more even than the U.S. attorney subpoenas, that may bring that period to an end.

Today's News

Terence Hunt writes for the Associated Press: "The White House, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

"President Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor.

"'With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,' White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. 'We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion.'

"Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers."