Posted by Mark Silva at 6:30 am CDT
President Bush and the Democratic-controlled Congress have started a high-stakes game of Texas Hold 'Em, according to Ray Shepherd, a Washington lawyer and former staff director and counsel for the Senate subcommittee on investigations. As they threaten a court battle over the president's executive privilige in the case of the fired federal prosecutors, he says, the stakes are "winner takes all.''
This means that neither side really wants to see the outcome of a court decision that settles the question of whether the president's executive privilege enables him to prevent political adviser Karl Rove and others from testifying under oath before congressional committees investigating the firing of eight U.S. attorneys.
If the courts should rule in favor of the president, Congress could face decades of inability to compel the White House to fess up about anything. If the courts should rule in favor of Congress, it's open hunting at the White House for years to come. There is no "absolute privilege'' for the president, the Supreme Court ruled in the battle over President Nixon's secret sound tapes of the Oval Office in the Watergate investigation.
With Bush vowing to take this battle to court if necessary, several well-informed lawyers looking at the card-game from the outside say the most likely outcome is a compromise that spares everyone a ruling.
See the story in today's Tribune:
And see the writer talk about the controversy on CLTV today:
Bush, Congress
at odds over subpoenas
By Mark Silva
Washington Bureau
WASHINGTON -- In forbidding his top aides to testify publicly and under oath on the controversial firings of eight federal prosecutors, President Bush faces a potential legal battle with Congress that he may not be able to win, experts say, making a compromise more likely.
With the House Judiciary Committee authorizing subpoenas for the testimony of Bush's top advisers on Wednesday and the Senate Judiciary Committee prepared to do the same Thursday, the White House insists that preventing Karl Rove and other key officials from providing sworn public testimony is a matter of executive privilege.
Yet the Supreme Court, while recognizing the right of the president to assert a constitutional confidentiality in many instances, has said there is no such thing as "absolute privilege."
And some legal experts say the White House {ndash} in agreeing to let Rove and others be interviewed, albeit privately and without an oath or even a transcript {ndash} effectively has conceded that their revelations would not compromise the president's right to confidentiality.
With the Democratic-run Congress confronting the prerogatives of the presidency, and no one interested in a protracted court battle, legal analysts predict a compromise of some sort that results in Congress settling for limited appearances by Rove and others.
"There is no absolute right to presidential privilege," said Peter Shane, a professor of law at Ohio State University who is writing a book about checks and balances. "What's at stake here is a qualified privilege. Bascially what somebody has to do—and that somebody could ultimately be a court—is consider the interests at stake for both parties… and which is the weightier interest."
The president has insisted he is willling to have the courts decide that question.
Asked in a White House appearance this week if he was prepared to "go to the mat" and take the issue to court, Bush replied, "Absolutely. I hope the Democrats choose not to do that."
Whatever the outcome of any legal case, a high stakes political battle is also under way, with Bush blasting Democrats for trying to score political points and Democrats insting the White House is stonewalling. The results of that fight for public opinion have yet to be seen, though so far the controversy has not helped the White House.
Democrats say the White House's offer of a limited, closed-door interview of Rove, former general counsel Harriet Miers and others would not serve the goal of discovering why the Justice Department fired eight federal prosecutors last year.
The House Judiciary Committee, with some Republicans opposing the move in a voice vote, authorized chairman John Conyers (D-Mich.) on Wednesday to issue subpeonas, though only if he has evidence of wrongdoing.
Democrats said the White House insistence that Rove and others not take an oath to tell the truth is troubling. "The White House says they have nothing to hide, but evidently, they are willing to speak only behind closed doors, but not under oath," said Rep. Rahm Emanuel (D-Ill.).
In addition to the other restrictions, White House counsel Fred Fielding has agreed to let committee members interview Rove, Miers and others only regarding communications between those inside and outside the White House. "The president must remain faithful to the fundamental interests of the presidency and the requirements of the constitutional separation of powers," Fielding wrote congressional leaders.
There are varying degrees of executive privilege, courts have determined, with matters of national security ranking highest. The White House says it is not asserting a specific privilege, but rather "basing our decision on the long-standing tradition of the respect for equal branches of government."
Bush insisted this week that the principle is central to a president's ability to get good advice. "If the staff of a president operated in constant fear of being hauled before various committees to discuss internal deliberations, the president would not receive candid advice, and the American people would be ill-served," he said.
White House press secretary Tony Snow said Wednesday the matter is non-negotiable. "We're laying down a marker in terms of internal White House deliberations," Snow said.
The Bush administration has asserted the presidential privilege before. Bush invoked it during Miers' failed Supreme Court nomination when he refused to show the Senate memos Miers had written. Vice President Dick Cheney invoked it early in Bush's first term in declining to release notes of his energy task force.
Yet the White House also has made an exceptions, allowing then-National Security Adviser Condoleezza Rice to testify before the Sept. 11 Commission.
The principle of presidential privilege is not clear-cut and is not in the Constitution. Instead, presidents long have asserted it as a corollary to the constitutional separation of powers.
The Supreme Court ruled on the question in 1974, when the special prosecutor in the Watergate investigation demanded that President Richard Nixon turn over tapes of Oval Office conversations. The court agreed that there are qualified privileges and "a valid need for protection of communications between high government officials and those who advise and assist them." But it also rejected an "absolute privilege" for the president.
"Executive privilege in the modern form, from Watergate to the present, has been the history of presidents claiming it and then being forced to give in and let the Congress get the evidence it needs," said Charles Tiefer, a professor of law at the University of Baltimore who was a deputy chief counsel for the Iran-Contra committee in the 1980s.
"In the modern era, Congress investigates scandals, and those investigations require testimony from the White House, from White House aides," Tiefer said. "To put it differently, the congressional hot-seat that was previously occupied by [Nixon aide] H.R. Haldeman… now waits for Karl Rove."
President Ronald Reagan waived privilege in permitting high-level aides to testify before the Iran-Contra committee.
Bruce Fein, who served as associate deputy attorney general in Reagan's Justice Department {ndash} and also as research director for the Republican minority on the Iran-contra committee {ndash} said Bush has effectively waived his assertion to any privilege by permitting Rove and others to speak with congressional committees, albeit privately.
"There is no established precedent that justifies the president's position," Fein said. "At best, they can say it's still open… I think he would lose in court, but he wins as a practical matter, because the court is not going to decide this for years."
It is the advantages held by each side that are leading many to predict a compromise rather than a showdown.
"It is the largest high-stake game of chicken that I have seen, and the stakes are enormous," said Ray Shepherd, former staff director for the Senate subcommittee on investigations. Neither the White House nor Congress wants a new court ruling on executive privilege, he suggested, because it could turn sharply against one side or the other.
"At the end of the day, I think you'll find some kind of accomodation," Shepherd said, such as private sworn testimony by Rove and others.
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Comments
If they didn't do anyting wrong...why are they afraid to testify under oath???
Posted by: lochnessmonster | March 22, 2007 7:10 AM
Americans need to have US attorneys that work for the people, not a party. The outrage of this should rise above partisan politics. I don't care who did what in the past, it needs to stop now. If only people could stop cheering for their team and see the importance of this issue.
Posted by: bill r. | March 22, 2007 8:02 AM
Bush claims to be a "strict constructionist," yet he hides behind a doctrine that's not even mentioned in the constitution.
Guess he has a different opinion when his own hide is on the line.
Anyway, even though Bush has packed the Supreme Court with right-wing stooges, the Dems should take it all the way.
We knew it was going to come down to this eventually. Bush has been pushing the "unitary executive" ever since Cheney first told him to.
Posted by: bb | March 22, 2007 8:03 AM
Bush disgusts me
He has no clue...The 25% of people still supporting this man are nothing but uneducated idiots
Posted by: John | March 22, 2007 8:25 AM
"He has no clue...The 25% of people still supporting this man are nothing but uneducated idiots."
This is the minority that also likes to bash universities & people who are actually educated. George Bush knows less about American Democracy then the average Japanese high school graduate. Is it any wonder he is one of the most incompetent presidents ever?
Bush only got thru an ivy league college because of daddy & his legacy status. He only got a degree with the help from the same fraternity his dad went too. Isn't it a shock Bush never released his grades?
CLinton was a Rhodes scholar, a program one must earn to get into & not because of your lineage or becasue your daddy is somebody. By the way, Carter was a captain of a nuclear submarine. Funny how conservatives like to forget that when they try to ridicule him as nothing but a peanut farmer.
It shouldn't shock anyone when Bush once ridiculed the US Constitution as nothing but a piece of paper.
Posted by: RomanB | March 22, 2007 9:31 AM
I agree bill r. Prosecutors should not be politicians. They should not be appointed or fired just based upon the D and R power shifts.
I don't know how to fix that.
Posted by: Leo T | March 22, 2007 9:54 AM
Dubya keeps saying how he'll run government so much better than Clinton by doing things that he says Clinton didn't do but should have.
Well, in this case, Dubya is the "anti-Clinton", because Clinton sent THIRTY ONE DIFFERENT people from his administration to testify, WHILE UNDER OATH, in front of Congress FORTY SEVEN TIMES.
Hey Dubya: If your people did nothing wrong, then they have nothing to hide! Testify under oath, on the record, with official transcripts being made public available. Unless you're afraid ...
Posted by: BC | March 22, 2007 9:55 AM
Only activist judges could save President Bush now. He vowed to pack the courts w/ strict constructionists. Scalia, Thomas, Roberts, and Alito. That's already 4 votes against him. He should give up now.
Posted by: jethro | March 22, 2007 9:59 AM
Leo T,
I've been chewing on your comment "I don't know how to fix it."
How about turning these jobs into G.S. rated Hatch Act limited type jobs in the way that other U.S. government jobs are structured?
Posted by: Doug Zook | March 22, 2007 10:13 AM
This shows you how desperate the democrat party really is,because they still have no power.They don't have enough votes to overide a Presidental veto and they can't get their agenda on track...it's beautiful!
HEY!-- When does that minimum wage increase start?
HEY!--When do the impeachment proceedings start?
HEY--How come the war is still going on?
HEY! How come the dems keep voting to fund the war?
HEY!KEEP DREAMING!
Paulo
Posted by: Paulo | March 22, 2007 10:20 AM
"Paradoxically, preserving liberty may require the rule of a single leader--a dictator--willing to use those dreaded 'extraordinary measures,' which few know how, or are willing, to employ."
-- Michael Ledeen, White House advisor and fellow of the American Enterprise Institute, "Machiavelli on Modern Leadership: Why Machiavelli's Iron Rules Are As Timely and Important Today As Five Centuries Ago"
Why must Bush and the increase in Executive Branch unilateral power be stopped? That's why.
Posted by: Fred | March 22, 2007 10:48 AM
Patience Paulo patience.
I would love to play Texas Hold 'em against this lying chimp. I'd have every penny his daddy ever gave him in about an hour. Shifty eyes, stumbling, stammering, sweating. Candy from a baby. But I wouldn't put it past this incompetent fool to have me sucker punched as I tried to stroll off with his loot.
Does anybody really believe this will go to the Supreme Court? This would force accountability where there has been none and instill a sense of transparancy that has never existed at this level of government. Although it is nice to see them squirm like the lying little children they are.
Posted by: Bubba | March 22, 2007 11:16 AM
The Supreme Court was pretty clear about what is covered by executive priviledge when Nixon tried to withhold evidence from Congress. Bush is going to lose this fight and will provide grounds for his own impeachment if he does not respond to Congressional subpoenas. Can't you just picture Cheney behind the scenes cheering George on and encouraging him to act tough and ignore Congress?
Posted by: Tom O | March 22, 2007 11:26 AM
Paulo..HEY...were's Osama?
Posted by: bill r. | March 22, 2007 11:34 AM
The W. administration went 6 yrs without any oversight or checks and balances under the lockstep Republican Congress.
Wecome to the "real" world Chimpy,you are no more above the law than a drunk and disorderly prostitute on Rush st is....Paulo....
If you've got nothing to hide,testifying under oath should be no big deal.
Posted by: John E. | March 22, 2007 11:42 AM
How about turning these jobs into G.S. rated Hatch Act limited type jobs in the way that other U.S. government jobs are structured?
Posted by: Doug Zook | Mar 22, 2007 10:13:52 AM
Sounds like a plan!
Posted by: Leo T | March 22, 2007 11:42 AM
Congress appears to have lost all trust in what the President says anymore. It's to bad for the country that Congress did not insist on transcribed testimony and under oath when the Preisent and his aides made their case to go to war. The developing story over these firings would have never gotten to the crisis point we now are witnessing had this administration not played it so fast and loose with the truth to not only the Congress, but the American people. Congress should doubt assertions made by this administration because the President has lost his right to deserve the benefit of the doubt. In plain English the President has proven to be a liar.
Posted by: edgar vega | March 22, 2007 11:51 AM
Enough of Bush! Impeach the egotistical, uncompromising, S.O.B.
Posted by: Kordic | March 22, 2007 12:09 PM
Leo T, The best way I can think of to discourage political tampering with US Attorneys after they are appointed is to encourage Congress to investigate this action and impeach Gonzales or any other parties who allowed political influence to interfere with investigations of government corruption.
Posted by: Tom O | March 22, 2007 12:59 PM
First off all of you liberal idiots out there. The President has the power to fire any US Attorney any time he wants for no reason. The Libs are trying to score points since they still cannot get anything done even with control of both houses. Have all of you forgotten that your wonder boy Clinton fired 93 of them when he took office?
Posted by: RYAN | March 22, 2007 2:09 PM
Ryan, I mean RYAN,
Try paying attention. Every president cleans house of attorneys when they take office. They don't do it mid-term for nothing more than political reasons. Even King George I and Chimpy's hero Ronny knew better than to engage in that level of partisanship.
And don't worry about the Dem congress, this is just the beginning of a long and beautiful house cleaning.
Posted by: Bubba | March 22, 2007 2:38 PM
President Bush is willing to go to court, specially if is the Supreme Court resting that he wons the elections in 2000 thanks to the Supreme Court and now he is confident that the result will be on his favor. Is time, once and for all, to unmask this person and his troop.
Posted by: manuel | March 22, 2007 2:47 PM
Exactly, why would you not want to testify if you have nothing to hide. The Bush Administration is full of lies. Impeach that president and the VP.
Posted by: billy | March 22, 2007 2:52 PM
To RYAN:
I agree that this President (as does any president) has the constitutional power to dismiss members of the Executive Branch.
However, the mere existence of this power doesn't mean it can be wielded without being restrained by convention, not to mention ethics and propriety. The debate over the present issue concerns suggestions (and evidence) that the prosecutors were removed for political reasons and not, as stated, for performance issues.
While each and every U. S. Attorney is a political appointee, the equal and fair administration of justice in our land suggests that these officers should leave politics outside the office door, and be free to pursue the prosecution of crimes that have been committed – regardless of the political fallout. Once they take that oath of office, political considerations should be forgotten, and the only consideration should be upholding the Constitution and the laws of the land.
While Congress constitutionally lacks the authority to reverse the U. S. Attorneys' dismissal, Congress has every right to question the actions of this Administration and demand forthright, complete answers instead of the evasive and contradictory statements made to date.
Whether President Bush likes it or not, he is not an absolute monarch unaccountable to the other two branches of government or to the American people. Neither this president nor his appointed subordinates have provided clear, honest explanations of their actions. I am sufficiently suspicious of anyone who wields executive power (now or at any other time) that I am unwilling to blindly accept their argument that their word is law and that their actions aren't up for discussion.
Finally, RYAN, it is not only the "liberal idiots" (great argument, by the way) who object to the Justice Department's action or to Mr. Bush's arrogance in dealing with Congress on this issue. A number of Republicans share the Democrats' disgust for this type of politicization of the justice system. Never mind the fact that the attorneys are Republicans themselves.
I hope no one who understands the fundamental principles of our system of government is under the illusion that any president is entitled to unlimited authority by executive fiat, or that he and his subordinates are unaccountable to the people's representatives in Congress. Without a balance of powers and without accountability by all public officials, our system is doomed.
Posted by: JRR | March 22, 2007 3:54 PM
Actually, it's kind of weird that they can just fire anyone for no reason, if that's true.
I don't know many companies who would fire someone without a series of negative performance reviews.
Posted by: Bill | March 22, 2007 5:20 PM
It does not require a Ph.D. is Computer Sciences
to INSTALL A PRINTER-FRIENDLY VERSION FOR
ALL 'SWAMP' CONTENT.
MAKE IT HAPPEN!!!
Posted by: ABE | March 22, 2007 11:51 PM
Ok so maybe the liberal idiot comment was kind of harsh. My whole point is this is nothing more then a political partisan fishing expedition. Congress could be doing a lot more productive things then this. Bush did nothing ILLEGAL so I really don't see the point of all of this. I only hope once the Presidents term is over our fine poilitcans can actually get back to governing instead of wasting our tax money. The goes for both parties which is becomming hard to tell apart.
Posted by: ryan | March 23, 2007 9:54 AM
Ryan:
Whether one serves in the legislature or whether one holds the position of Chief Executive, an inherent part of politics is to do the job you believe the voters sent you to do. In the end, the public will decide whether you used your position wisely.
There is no doubt that the Democrat-led Congress is taking a partisan stance against the Administration's own partisan stance. This opposition is not necessarily a bad thing, however. The previous Republican-controlled Congress has been accused of being a rubber stamp for the current Admnistration.
While it's convenient for any chief executive to have a Congress willing to do his bidding, I think our freedoms are better served by a Congress that understands its constitutional responsibilities, and that is willing to debate the public policy set forth the Executive Branch instead of abrograting its responsibility. There's good reason our founding fathers didn't establish a parliamentary system in the United States!
Though there's always the opportunity for grandstanding and posturing during the debate (this is Congress, after all), I would on the whole prefer to have this subject debated in Congress than to have it swept under the rug. Though the Chief Executive undeniably holds the power to appoint and dismiss subordinate officers of his administration, the public has a right to know whether this power was used wisely or ethically.
Many Americans of all political stripes would be disturbed if it proves that the long-cherished principle of equal justice under the law was set aside in order to punish U. S. Attorneys who pursued politically inconvenient prosecutions, or who refused to prosecute political enemies in the absence of evidence of criminal activity.
You can see that I strongly believe in the constitutional principle of balance of powers and "advise and consent". We are better served by a free and vigorous debate of the facts than by having the story go untold by those who would rather hide the details from the public and from our representatives in Congress. The truth and our freedoms are better served by airing this subject than by hiding it.
Posted by: JRR | March 23, 2007 5:52 PM