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House Panel Authorizes Subpoenas for Bush Aides

March 21, 2007 at 6:10 PM EST
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JUDY WOODRUFF: Despite the president’s warning of a constitutional showdown if Congress tried to force White House staff to testify about the firings of eight U.S. attorneys, a House Judiciary subcommittee this morning took the first step toward doing just that, authorizing the use of subpoenas.

Chairwoman Linda Sanchez said Congress was left with no choice.

REP. LINDA SANCHEZ (D), California: After two months of stonewalling, shifting stories, and misleading testimony, it is clear that we are still not getting the truth about the decision to fire these prosecutors and its cover-up. There must be accountability.

JUDY WOODRUFF: By a voice vote, the subcommittee approved — though it has yet to issue — subpoenas for White House political adviser Karl Rove and former White House counsel Harriet Miers, along with their deputies.

Also targeted was the former chief of staff for Attorney General Alberto Gonzales, Kyle Sampson, who resigned last week after the controversy over the firings exploded.

Yesterday, current White House counsel Fred Fielding tried to head off the subpoena vote by offering House and Senate Judiciary Committee members private interviews with Rove and Miers. But Massachusetts Democrat Bill Delahunt said the specific terms under which those interviews would be conducted were unacceptable.

REP. BILL DELAHUNT (D), Massachusetts: To insist that these interviews be conducted privately, not under oath, and with no transcript, I would suggest is borders on insulting to this committee and to this Congress.

JUDY WOODRUFF: Most Republicans on the committee voted against authorizing subpoenas. Florida’s Tom Feeney said the Justice Department has been cooperative in the congressional investigation and said negotiations with the White House should continue.

REP. TOM FEENEY (R), Florida: Just yesterday, the Department of Justice put some 3,000 documents in front of us in what appears to be an effort to comply and comply in full. It seems that this subpoena is very much premature. And while we have the power to do things to the other branches of government, it doesn’t necessarily mean that we need to leave all mutual respect for our fellow branches in the dust.

JUDY WOODRUFF: Shortly after the House vote, President Bush’s spokesman, Tony Snow, said if the subpoenas were to be issued, the White House offer would be pulled off the table. He urged Democrats to review it again.

TONY SNOW, White House Press Secretary: It’s a reasonable and extraordinary effort on our part to help Congress do its job and also to do it in a way that is consistent with dignity, respect between the two branches of government, and getting at the truth.

JUDY WOODRUFF: Meanwhile, Senate Judiciary Committee Chairman Patrick Leahy, who also has rejected the White House offer, said his panel will authorize the issuance of subpoenas tomorrow.

SEN. PATRICK LEAHY (D), Vermont: Let’s have it in public. Let’s find out what’s going on, allow both Republicans and Democrats to ask the questions, have them under oath, and clear this matter up.

JUDY WOODRUFF: Ranking Republican Arlen Specter predicted a prolonged constitutional fight if no compromise with the White House is reached.

SEN. ARLEN SPECTER (R), Pennsylvania: Now, if we have a confrontation between the president and the Congress, and we go to court — which is the way these matters have been resolved if there can’t be an accommodation — we face very, very long delays.

JUDY WOODRUFF: A decision by the congressional committee chairmen to formally issue subpoenas could come next week.

The White House's offer

Beth Nolan
White House Counsel, Clinton Admin.
We've gotten differing stories about how these U.S. attorneys were fired, why they were fired, and whether there was any interference with individual cases or prosecutions.

JUDY WOODRUFF: For more on the showdown between Congress and the White House, we're joined by Beth Nolan, former White House counsel to President Clinton. She's now in private practice at the firm of Crowell and Moring here in Washington.

And Douglas Kmiec, he served as assistant attorney general in the Justice Department's Office of Legal Counsel during the Reagan and first Bush administration. He's now a professor at Pepperdine Law School in California.

Doug Kmiec, to you, first. The White House, Tony Snow is saying they are making an extraordinary effort to compromise. Boil down for us what the White House position is here.

DOUGLAS KMIEC, Pepperdine Law School: Well, I think it is an extraordinary effort, Judy. The White House position, anchored in the Constitution, is that presidential communications, especially presidential communications regarding personnel questions, are presumptively privileged.

Mr. Fielding, who's an experienced hand at these questions, yesterday made a very generous offer -- in fact, it's a quite comprehensive offer -- that allowed for interviews of all of the central figures -- Karl Rove and his deputy, the White House counsel, former White House counsel, and her deputy, and a number of others -- regarding the full scope of how it is these decisions for the dismissal of these eight U.S. attorneys was made; that the staff would be able to be there, along with the members; that questions could be asked by either.

And the one limitation was that it was a limitation that would maintain the confidentiality of the executive branch determination. And, indeed, there's really no reason whatsoever, given the fact that there hasn't been any allegation of criminal wrongdoing, for this to be a matter to be conducted on the Hill.

JUDY WOODRUFF: Beth Nolan, the congressional majority, Democratic congressional majority in both the House and the Senate have said, no, this is not enough. Explain what their position is.

BETH NOLAN, Former White House Counsel to President Clinton: Well, first of all, I think we have to start with the understanding that we've got two co-equal branches of government, each with strong interests here. And the White House can't assert that only its interests need to be considered, and neither can Congress.

But I'd start with the idea that there's not just one limitation in Mr. Fielding's offer. It was not under oath, no transcripts, and you can't ask them back. That's quite a lot to ask of an investigative body.

JUDY WOODRUFF: So the congressional standpoint is what, that they want a complete, under oath...

BETH NOLAN: Well, Congress has said what we'd like, yes, is under oath -- or at least we've heard from many members under oath. We want the opportunity, if we need to ask again, if we need to ask further questions, to see you again.

And our reason is that we think there may be concerns. We've gotten differing stories about how these U.S. attorneys were fired, why they were fired, and whether there was any interference with individual cases or prosecutions.

DOJ, White House communications

Douglas Kmiec
Pepperdine University
It is the president who nominates U.S. attorneys. It is the president who appoints U.S. attorneys. It is the president who removes U.S. attorneys.

JUDY WOODRUFF: These are just communications between the White House and the Department of Justice.

BETH NOLAN: Between the White House and the Department of Justice.

JUDY WOODRUFF: So, again, if that's the case -- I'll come back to you, Doug Kmiec, what's the concern? If these are not communications inside the White House, why not let these individuals testify under oath?

DOUGLAS KMIEC: Well, because this ultimately goes back to the president's authority. It is the president who nominates U.S. attorneys. It is the president who appoints U.S. attorneys. It is the president who removes U.S. attorneys.

And preserving his ability to supervise his subordinate officials has been a hallmark of Supreme Court jurisprudence going back generations, and that's what he's defending. He's not defending it just for this instance. He's defending it as a fiduciary of the office.

Now, I admit that Beth makes a solid point that Congress has a legitimate interest in terms of oversight. But I think one of the maybe ironically odd things about Mr. Fielding's letter yesterday was that it was so wonderfully drafted and comprehensive that it contained within it things that usually would be haggled over for weeks and weeks.

And most of the time, executive privilege disputes in our history have not been resolved in court. There's very few court cases on this proposition. Indeed, the courts generally run from these cases, calling them a political question. And, instead, they enjoin upon the executive and legislative the obligation to bargain.

Now, in some respects, Mr. Fielding sort of short-circuited the bargaining by making his best offer. And it doesn't appear to me that Senator Leahy, perhaps, and Congressman Conyers fully appreciated the generosity of that offer.

Finding a middle ground

Douglas Kmiec
Pepperdine University
Negotiation is the key, because if they [Congress] pursue the issuance of the subpoena, things deteriorate very rapidly into contempt proceedings, efforts to get those contempt proceedings enforced in court.

JUDY WOODRUFF: And, in fact, we're not at a showdown yet, Beth Nolan. Both sides are saying that members -- they have not issued these subpoenas yet.

BETH NOLAN: That's right, that's right.

JUDY WOODRUFF: Both sides are saying -- they're indicating there can be conversations now.

BETH NOLAN: We are still in the negotiation process, which is exactly what you would expect. You know, Mr. Fielding may feel that he put his best offer out on the table, but there may still be room -- and I hope there is room -- for some compromise, some recognition of congressional needs here.

JUDY WOODRUFF: Significant that the White House is saying, if you issue these subpoenas, our offer is withdrawn? Is that what you would expect them to do under these circumstances?

BETH NOLAN: I would expect that, but I'd also say, if you issue those subpoenas, we understand you have rejected our offer. So it wouldn't -- if the subpoenas are issued, then the Congress has said "no, thank you" to that offer.

JUDY WOODRUFF: And, Doug Kmiec, today, discussion at the White House about the fact there's a gap in the e-mails that they've turned over between the middle of November of 2004 and until December -- I'm sorry, 2006 -- until December 4th, right before these firings took place. Is that significant, do you think?

DOUGLAS KMIEC: Well, you know, I think it's something that the administration will want to answer, and I think they would be quite willing to affirmatively answer, to say there's just simply nothing material or relevant with regard to this question during that period of time, or if, in fact, something has been overlooked, to supply it.

But Beth is exactly right: Negotiation is the key, because if they pursue the issuance of the subpoena, things deteriorate very rapidly into contempt proceedings, efforts to get those contempt proceedings enforced in court. And as I say, no court is really going to be anxious to pursue that.

And in all likelihood, the result is not going to be favorable, if history is any guide, to the legislature.

JUDY WOODRUFF: So it's in the interest -- do I hear you saying, Beth Nolan -- it's in the interest of the Congress, of the Democratic majority to find some middle ground here?

BETH NOLAN: Well, I think that Congress has said it wants the information, and I think both the Congress -- and I don't think it's just the Democrats; I think we've heard from Republicans, too, that they want this information -- that Congress and the White House both need to try to find some middle ground.

And Congress does need to respect and understand that there are certain presidential communications that should be protected for the reasons Doug outlined. And the White House has to understand that Congress really has an interest here that it needs to try to accommodate.

JUDY WOODRUFF: You're absolutely right on that point. Republicans Senator Specter, Senator Cornyn and others, not only there but in the House, have said they agree, the White House needs to be more forthcoming. We're going to have to leave it there.

Doug Kmiec, thank you very much.

Beth Nolan, thank you.