White House Subpoenas, and a Constitutional Showdown

By Matt Renner
t r u t h o u t | Report

Thursday 14 June 2007

Subpoenas issued Wednesday by Congress for testimony from former White House officials could lead to a constitutional crisis over the right of executive privilege.

Experts in constitutional law believe that the Bush administration will not comply with the Congressional subpoenas and will force a showdown. If individuals do not comply with the subpoenas, a vote can be taken to hold them in contempt of Congress. The issue would then be sent to the Washington, DC Circuit Court, where the US attorney for the District of Colombia could prosecute the case before a grand jury.

According to Stanley Brand, former counsel for the US House of Representatives, "It is doubtful that Jeffrey Taylor, the current US attorney for the District of Colombia would enforce Congressional subpoenas." Taylor participated in drafting the Patriot Act and served as counselor to Attorney General Alberto Gonzales prior to his installation as an interim US attorney for the District.

Brand has been here before; he faced Fred Fielding, then-counsel to President Reagan, in a very similar fight. In 1983, Brand represented the House of Representatives in an attempt to enforce a Congressional subpoena issued to the Reagan administration. Instead of convening a grand jury to prosecute the case, the US attorney sued the House of Representatives claiming that the action taken by the House was unconstitutional. The case against the House was thrown out of court and, in the face of mounting political pressure, the Reagan administration eventually turned over the subpoenaed documents to Congress.

In Brand's opinion, the law compels federal prosecutors to convene a grand jury trial to rule on the contempt-of-Congress charge. "The law says that the US attorney for the District 'shall present the case to a grand jury.' The US attorney will claim that this undermines his discretion as a prosecutor, but his discretion does not give him the right to deep-six a case because the president does not like it."

Despite his legal opinion, Brand sees this subpoena attempt as futile. "I think the claim of executive privilege is weak, but [Congress] can't get their case to court. Maybe they understand this and are just trying to up the ante."

Congress has one other option to enforce their subpoena: They can order the Capitol security to arrest the individual who refuses to comply with the subpoena and lock him or her in the basement of the Capitol building. Short of this, the only solution is a political one, according to Ohio State law professor Peter Shane.

Shane, an expert in separation of powers issues, said that Congressional Republicans might be the ones to prevent a constitutional crisis: "President Bush is at 32 percent approval in the polls and has no support to lose. The president seems inclined to stick it out and fight Congressional oversight as long as possible. If Republicans in Congress think that the president's claims of executive privilege give the appearance of a cover-up and could hurt them in their reelection campaigns, they could pressure Bush to comply with the subpoenas."

Although the subpoenas issued by Congress Wednesday represent a serious escalation, Shane says the situation is not necessarily headed for court. "The White House and Congress will continue to try and negotiate, but it is clear that the offer by the White House to have their staffers give testimony, without any record, is a non-starter for Democrats."

A new batch of emails between the White House and the DOJ, released late Tuesday, provided further proof that White House aide Karl Rove's Office of Political Affairs was intimately involved in the firings of nine US attorneys. The document released contained correspondence among officials in the White House Office of Legal Affairs, the White House Office of Political Affairs and the Department of Justice, in which they discussed and planned for the political consequences resulting from their decision to fire nine US attorneys in 2006.

The new documents prompted Congressional investigators to issue subpoenas for the testimony of former White House Counsel Harriet Miers and former director of political affairs under Rove, Sara Taylor. Senator Charles Schumer (D-New York) said: "The bottom line is, today the House and Senate have said that we realize the White House will never cooperate and we have to go the subpoena route. It's sad that it's come to this." Schumer added, "It's now up the president: Is the White House going to cooperate with an investigation that has rocked the Justice Department or will they continue to stonewall?"

The White House has previously denied Congressional access to Rove and Miers except under the condition that their testimony would not be given under oath and would not be made public. Issuing the subpoena for Miers crossed a red-line set forth by the White House in previous negotiations with Congress. A subpoena for Rove has been drafted and approved but has not yet been issued.

In a press briefing Wednesday, White House Spokesman Tony Snow claimed that the White House has yet to reach a decision about its response to the subpoenas. However, previous correspondence among White House Counsel Fred Fielding, Senator Patrick Leahy and Representative John Conyers, the chairman of the Senate and House of Representatives Judiciary Committees, shows that the administration has already taken a position on the issue.

In his June 7 letter, Fielding wrote, "... it is our strong hope that the committees will not feel compelled to elevate the stakes by pursing the path of subpoenas and compulsory process ... which will only prolong this debate....", implying that White House officials would not comply with Congressional subpoenas. In previous letters, White House officials have made clear that the president would invoke his claim to executive privilege to prevent Congress from gaining access to sensitive information.

In a statement Wednesday, Chairman Conyers said: "This subpoena represents a very serious step by Congress, not to be taken lightly. Defiance or failure to comply would run counter to the checks and balances that are the foundation of our Constitution and democratic government."