Defusing The Constitutional Confrontation over Congressional Subpoenas Relating to the U.S. Attorney Firings Scandal

By CARL TOBIAS

Wednesday, Jun. 27, 2007

On June 13, Congress issued subpoenas to former White House Counsel Harriet Miers and Political Director Sara Taylor. The subpoenas seek their testimony about the controversial dismissals of nine U.S. Attorneys. Congress also issued a subpoena to White House Chief of Staff Josh Bolten, for documents relating to the dispute.

The subpoenas have a Thursday deadline, and Congress and the White House sharply disagree about the subpoenas' validity. Thus,the Legislative and Executive Branches are hurtling toward a constitutional confrontation. Congress and the White House must expeditiously tamp down the rhetoric,cooperate and reach accord, if they are to avoid a constitutionalshowdown.

Background: The Seeds of the Constitutional Conflict

In early March, the Senate and House Judiciary Committees requested that Miers, political adviser Karl Rove and additional White House officials testify, and provide documents, about the U.S. Attorney firings.

On March 20, White House Counsel Fred Fielding responded to the requests. He offered to make Miers, Rove, and others available for private interviews without an "oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas," which the two committees jointly and relatively few members would conduct.

Interviews, Fielding stated, would also be limited to communications between the White House and persons outside it about dismissals of the nine fired U. S. Attorneys, and between the White House and Congress regarding these dismissals. Thus, the offer would prohibit questions about communications inside the White House. Fielding urged Congress to accept his "reasonable offer," which he emphasized was necessary to protect Executive Branch and presidential prerogatives.

On that day, and over the three months since then, President George W. Bush and administration officials have repeatedly claimed that they have made a reasonable offer, and touted the benefits of executive privilege, asserting that Mr. Bush and future presidents must have frank advice from staff and only the privilege can ensure that candor. For these reasons, Bush and his spokespeople have pledged to fight Congress, in court if required, over subpoenas and warned legislators against political "stunts" and theatre.

In response, Senate Judiciary Chair Patrick Leahy (D-Vt) and House Judiciary Chair John Conyers (D-Mich.) have strongly and clearly rejected the offer, arguing that testimony must be under oath and on the record for true accountability. Each chair also vowed to secure authority from his committee to issue subpoenas for the testimony requested. On March 22 and 21, the Senate and House Judiciary Committees respectively voted to grant that authority.

Senator Leahy and Representative Conyers subsequently attempted on numerous occasions to cooperate with the White House regarding the testimony and documents requested. The chairs sent Mr. Fielding multiple letters and participated in meetings intended to resolve the disagreements. Senator Arlen Specter (R-Pa.), the senior minority member, has concomitantly undertaken several initiatives to negotiate a reasonable agreement.

After months of effort to resolve amicably the Congress/White House dispute over the testimony and the documents, the Senate and House Judiciary Committees finally issued subpoenas. On June 13, the Senate panel voted to subpoena testimony from Taylor and the House Committee voted to subpoena Miers's testimony.

As noted above, the White House must respond to the subpoenas by Thursday. If the White House does not comply, this might precipitate a constitutional confrontation because lawmakers may vote to hold White House officials in contempt of Congress and seek to resolve the issue in federal court.

A Way for Congress and the White House To Back Away from the Constitutional Precipice

Congress and the White House should retreat from theprecipice of a constitutionalbattle and secure accord. This conflict can be addressed without going to the extreme of holding White House officers in contempt of Congress.

For instance, lawmakers might consider accepting the offer of private interviews and, after they have occurred, determine whether the officials have furnished the information needed or whether under-oath interviews remain necessary. If the persons interviewed appear to have been open and candid, Congress may deem under-oath interviews unnecessary.

The White House, too, should think about a compromise. The White House could consider having the witnesses testify without oaths, but on the record, and then sealing that material for some period of time. Sealing, if effective, could rectify or ameliorate some concerns that have prompted the White House to invoke executive privilege.

These are not the only possible solutions: Resolution of this controversy is restricted only by the imagination of Congress and the White House. Essential is simply figuring out some way to defuse the constitutional confrontation that is now threatened

Such a confrontation will not be in the best interest of the Executive Branch, the Legislative Branch or the nation. Thus, Congress and Mr. Bush should pursue a compromise that allows the President to protect White House prerogatives but also allows lawmakers to further their legitimate interest in probing the already- strong evidence that improper politicization of U.S. Attorney hiring and firing has occurred.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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