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Experts Analyze Bush’s Refusal to Release Subpoenaed Documents

The White House invoked executive privilege Thursday when it refused to release documents relating to the firing of nine federal prosecutors. The NewsHour talks with two former government officials, Doug Kmiec and Bruce Fein, about the controversy.

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  • JIM LEHRER:

    Finally tonight, the president invokes executive privilege, and the debate is on. Margaret Warner has our story.

  • MARGARET WARNER:

    Constitutional showdowns are brewing over one, possibly two, sets of congressional subpoenas for White House documents. Two weeks ago, Senator Patrick Leahy and Representative John Conyers, the Democratic chairmen of the two Judiciary Committees, issued subpoenas for White House papers related to the firings of nine federal prosecutors last year.

    This morning, on the deadline set to comply, White House counsel Fred Fielding wrote back, saying the documents would not be produced on the grounds of executive privilege. If both sides hold their ground on this, it could ultimately be a matter for the Supreme Court to decide.

    In addition, late yesterday, the Senate Judiciary Committee also subpoenaed White House documents related to the National Security Agency's warrantless wiretapping program. It set a July 18th deadline, and the White House has not responded.

    Joining us are two former Reagan Justice Department officials who hold differing views on this issue: Doug Kmiec, a professor of constitutional law at Pepperdine Law School; and Bruce Fein, who's now in private practice in Washington.

    Welcome to you both, gentlemen.

    So, Bruce Fein, as a matter of constitutional principle, who's right on this?

  • BRUCE FEIN, Former Associate Deputy Attorney General:

    Well, I think the Congress is. The Supreme Court of the United States has spoken only once in over 200 years, saying that the president enjoys a qualified privilege to keep communications confidential.

    But that can be overridden if there's a strong countervailing government interest. Here, it's the congressional oversight power. They need these documents to know whether there was perjury committed by some officials testifying about the discharge of U.S. attorneys in the White House involvement. They need to know whether the personnel at the U.S. attorney level was manipulated to further a partisan rather than a general policy agenda, which would be a discredit of the idea that justice must be above suspicion.

    And in the warrantless surveillance program, they need to know what legal advice was given to the president or the National Security Agency because, depending upon the answer, there could have been crimes committed by White House officials. And that certainly is a legitimate area of investigation. The Supreme Court confirmed that over 80 years ago in the cases stemming from Teapot Dome. So, overall, I think the Congress has the right hand here.

  • MARGARET WARNER:

    And, Doug Kmiec, you hold a differing view on the constitutional issues here.

  • DOUGLAS KMIEC, Former Assistant Attorney General:

    I do. The Supreme Court, as Bruce Fein indicates, has considered this matter, and we're talking about a balance. It's a balance, on the one side, between the executive's responsibility under the Constitution weighed against the Congress's demonstrable need for particular information.

    In the context of the U.S. attorneys' situation, Congress has indicated that its need is a concern about — as Bruce said — possible removals for improper reasons or perhaps misstatements by the Department of Justice. And yet there has been no showing of any information that indicates that there's been an obstruction of justice or that people were removed to stop an investigation.

    And with regard to the issue of whether or not someone misspoke when they testified before Congress, that has nothing to do with internal White House deliberations. It has everything to do with the Department of Justice, and they have been regularly testifying on Capitol Hill.

    The White House interest, Margaret, on the terrorist surveillance program seems to me to be even stronger, because while the president has the responsibility of appointment with respect to U.S. attorneys and the supervision of U.S. attorneys, he has even stronger commander-in-chief responsibilities with regard to military intelligence in wartime. The Supreme Court of the United States in U.S. v. Nixon said his privilege is near absolute in the context of protecting national security, qualified when there's a very specific, demonstrable need, but that really hasn't been shown here.