Bush Denies Congress Access to Aides

Move Sets Up Showdown with Congress Over Executive Power

9 Jul 2007 // President Bush directed two former aides today to defy congressional subpoenas and refuse to testify about the dismissals of nine U.S. attorneys, asserting executive privilege for the second time in two weeks amid rising partisan tensions between the White House and Capitol Hill.

White House counsel Fred F. Fielding notified Congress of the president's decision in a letter sent this morning, saying that Bush is acting "to protect a fundamental interest of the presidency" in preserving the confidentiality of internal communications. Fielding also rejected a demand for a more detailed justification and accounting of Bush's previous executive privilege assertion.

Bush's decisions, first forecast by sources over the weekend, propelled Congress and the executive branch closer to a judicial showdown over the limits of a president's power to shield deliberations by his staff. Fielding repeated his offer to let Congress question White House aides behind closed doors, not under oath and without transcript or recording, but Democrats have consistently rejected such conditions.

If the two sides remain at an impasse, either the House or Senate can cite the White House with contempt and send the matter to court. The Supreme Court has recognized the existence of a president's executive privilege, but said the privilege is not absolute and can be overcome depending on the circumstances.

Typically when the White House and Congress fight over such subpoenas, they end up cutting a deal before judges rule on the validity of a particular privilege claim. For that reason, there are only limited precedents to judge how far a president or lawmakers may go.

In the current case, Bush today directed his former White House counsel, Harriet E. Miers, and his former political director, Sara M. Taylor, not to testify before the House and Senate judiciary committees this week. Democrats want to question both about their involvement in the firings of federal prosecutors last year that have stirred a furor on Capitol Hill, even among some Republicans.

Bush's instruction puts Miers and Taylor in an awkward position because, as former officials, they now face the choice of defying the direction of a president they both worked for or risking criminal contempt citations by Congress. Taylor's attorney, W. Neil Eggleston, complained in a letter to Fielding and congressional chairmen over the weekend that she was willing to testify but was unfairly being put in the middle of "an unseemly tug of war."

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) said over the weekend that the White House had no legitimate basis to block testimony by Taylor or Miers. "I haven't heard anything from Mr. Fielding or anybody else at the White House that would justify a claim of executive privilege," he said on CNN's "Late Edition" on Sunday.

He noted that Taylor had sent tens of thousands of email messages on a Republican National Committee account, which means her involvement should not be considered internal advice of the president. "So far, the White House has not given us a single piece of paper. They've not given us a single witness. I think it's time for the stonewalling to stop."

On ABC's "This Week," House Judiciary Committee Chairman John Conyers (D-Mich.) said he would move to hold the White House in contempt if it did not comply. "We're going to pursue our legal remedies to press forward with the subpoenas," he said. He added: "We're seeking cooperation. This is not partisan in any way whatsoever. I would have the same attitude if it were a Democratic president."

In his letter today, Fielding complained about the tone of rhetoric coming from the Democratic leaders, asking that in the future the dialogue "be distinguished by respect for the constitutional principles of both institutions and marked by a presumption of goodwill on both sides."

Aside from moving to block testimony by Miers and Taylor, Fielding refused a demand by Leahy and Conyers that he produce a more detailed justification of Bush's June 28 executive privilege assertion over documents sought by lawmakers. Leahy and Conyers had directed the White House to produce by 10 a.m. today a privilege log listing each document withheld, including its source, subject matter, date and recipients.

Fielding wrote that he has already explained the legal basis for the previous privilege claims and said he would not turn over such a log "because it represents a substantial incursion into Presidential prerogatives and because, in view of the open-ended scope of the Committees' inquiry, it would impose a burden of very significant proportions."