White House hit with 'enforcement' threat over Congressional subpoenas
Michael Roston
Published: Friday June 29, 2007
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A day after the White House asserted its executive privilege in refusing to turn over documents subpoenaed as part of the investigation into the firing of 8 US Attorneys, Congressional investigators promised enforcement action in the weeks to come in a Friday letter to the White House.

"We were disappointed that we had to turn to these subpoenas in order to obtain information needed by the Committees to learn the truth about these firings and the erosion of independence at the Justice Department. We are even more disappointed now with yet further stonewalling," wrote Senator Patrick Leahy (D-VT) and Rep. John Conyers (D-MI), the chairmen of the Senate and House Judiciary Committees respectively. "Whether or not we have the benefit of the information we have directed you to provide by July 9, we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law."

Conyers and Leahy had ordered documents from the White House pertaining to the firing of 8 US Attorneys and linked to two former White House staff: former counsel Harriet Miers, and former top political adviser Sara Taylor. The documents were due Thursday, June 28, and were not delivered after White House Counsel Fred Fielding wrote to the Congress Members asserting 'executive privilege.'

"For the Presidency to operate consistent with the Constitution's design, Presidents must be able to depend upon their advisors and other Executive Branch officials speaking candidly and without inhibition while deliberating and working to advise the President," Fielding wrote in his Thursday morning letter.

The two lead congressional investigators questioned the White House's assertion of privilege without any explanation for why it was necessary or legitimate in specific cases.

"The subpoenas themselves specifically stated that for each document withheld, you should provide...the specific legal basis for the assertion of privilege," the two senior Congress members wrote. "Such privilege logs have been provided by the White House in previous Administrations, and this Justice Department has provided similar logs in this very matter, which have been used to help resolve disputes about the production of documents. Yet, you have failed to provide any such information."

They also questioned whether the White House could so broadly assert executive privilege.

"Your action today in stonewalling the Committees’ investigations is also inconsistent with the practices of every Administration since World War II in responding to congressional oversight. In that time, presidential advisers have testified before congressional committees 74 times voluntarily or compelled by subpoenas," Leahy and Conyers wrote. "The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented and damaging to the tradition of open government by and for the people that has been a hallmark of the Republic."

The fracas between the White House and the Congressional investigators appears bound for court. One Republican Senator even suggested that he thought it would be a good idea to have the courts settle the matter.

"Let's go ahead and have the courts decide it, and we'll honor whatever they decide," said Senator John Cornyn (R-TX) Thursday afternoon on CNN's Situation Room program.

But some Congressional Democrats were worried that the courts might not produce a proper result.

"On some of these issues, the courts are not friendly to us because they're all in the family, especially in the District of Columbia," Democratic House Speaker Nancy Pelosi said in a Thursday conference call. "If we wanted to challenge them in court, the decisions would not be in our favor, we know that. You can see what the Supreme Court did today, if you want any evidence of the immodesty of the courts."

The current fight is likely to face a repeat soon. Miers and Taylor are both scheduled to appear before Congressional committees in mid-July. Fielding made clear that Bush's assertion of executive privilege would apply to their testimony, too.

"The President is satisfied that the testimony sought from Sara Taylor and Harriet Miers is subject to a valid claim of Executive Privilege and is prepared to assert the Privilege with respect to that testimony if the matter cannot be resolved," Fielding claimed in the Thursday letter.