Risks Await Bush, Congress If Subpoena Dispute Goes To Court

Thursday, March 22nd 2007, 2:22 pm
By: News On 6

WASHINGTON (AP) _ President Bush has tried for years to reassert the president's right to keep secrets from Congress. Now he must decide how far he wants to go to keep aides from testifying about the firing of federal prosecutors.

If he exerts executive privilege and the dispute ends up in court, the fight with Congress will be refereed by a judicial branch that recently has not been kind to the presidency in fights over subpoenas. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill.

``I don't think anyone would want this in court. If anything is to be politically settled, it's this one,'' said Louis Fisher, a Library of Congress specialist on constitutional and an expert on presidential powers.

Democrats want White House aides, including political adviser Karl Rove and former White House Counsel Harriet Miers, to testify about their roles in the firing of eight U.S. attorneys last year.

The White House says the aides may meet with lawmakers but insists the discussions must not be under oath or in public. Democrats, who say the firings were politically motivated, want the testimony under oath and in a congressional hearing room.

So far, the Bush administration has characterized its resistance as an effort to preserve presidential prerogatives. Officials have stopped short of even mentioning executive privilege _ an assertion designed to protect executive branch deliberations from disclosure under some circumstances.

No president has mounted a court fight to keep his aides from testifying on Capitol Hill, Fisher said, but courts have gotten involved in criminal disputes. The Supreme Court ordered President Nixon to provide the Watergate tapes to prosecutors and rejected a request by President Clinton to withhold notes from the Whitewater grand jury. A federal appeals court also ordered Clinton's legal counsel to testify before a grand jury investigating his relationship with Monica Lewinsky.

Fights over congressional testimony are normally resolved politically.

Sometimes the White House wins those political tussles, such as when President Eisenhower invoked executive privilege to keep officials from testifying at Sen. Joe McCarthy's hearings. Presidents Andrew Jackson, Calvin Coolidge and William McKinley all successfully stood up to Congress.

Other times, Congress wins out. Nixon reluctantly let aides testify about the Watergate break-in. Presidents Carter and Reagan urged advisers to cooperate in congressional probes. Numerous Clinton aides testified about fundraising and the Whitewater investigation.

Bush has sought to reassert that the executive branch is independent and may withhold documents and testimony from Congress and the public. He refused, for instance, to release information about Vice President Dick Cheney's energy task force.

Bush's most notable compromise came in 2004, when he reversed course and allowed then-national security adviser Condoleezza Rice to testify before the panel investigating the 9/11 attacks.

He has shown no such sign of relenting in the current dispute. If Congress issues subpoenas, the White House says it will rescind the offer to let aides answer questions privately.

Such posturing does not guarantee a court fight, said Steven Reich, a former associate counsel to Clinton. ``Even when you're saying no, typically what you want is compromise,'' Reich said.

The fight is not risk-free for Congress. The law on executive privilege is murky, which allows lawmakers to threaten subpoenas as a bargaining chip. If the Supreme Court were to rule in Bush's favor, that would remove future subpoena threats and significantly weaken Congress' ability to seek information from the White House.

While many hearings during the Clinton administrations involved allegations of misconduct, the dispute over prosecutor dismissals involves executive policy decisions. Courts likely will be hesitant to give Congress broad authority to delve into such areas, Reich said.

``Part of me thinks, maybe Bush wants it,'' said Mark J. Rozell, a George Mason University professor who studies executive privilege. ``Bush probably believes if he stands his ground and goes all the way to court, he'll win and he'll preserve presidential prerogative.''

Three Supreme Court Justices _ Samuel Alito, Antonin Scalia and Chief Justice John Roberts _ served in the Justice Department. Roberts also was one of Reagan's legal advisers and Scalia was head of the Office of Legal Counsel, which provided legal advice to Nixon.

Another, Justice Stephen Breyer, advised the Senate Judiciary Committee.

``I don't think a court would want this,'' Fisher said. ``I don't think anyone would want this.''