White House Rejects Subpoenas in Attorney Firings

Asserting executive privilege, the White House says it will not respond to subpoenas for documents and testimony sought by Congress in the firing of eight federal prosecutors.

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STEVE INSKEEP, host:

Here's an update on a growing legal dispute between Congress and the Bush administration. The White House is asserting executive privilege in the controversy over fired prosecutors. President Bush's attorney notified Congress today that he will not respond to subpoenas for documents and testimony in that scandal.

NPR's Ari Shapiro is following the story and joins us now. And what are the documents at issue, Ari?

ARI SHAPIRO: Well, the Senate Judiciary Committee and the House Judiciary Committee had subpoenaed documents and testimony from Sara Taylor, who used to be the White House's political director, and Harriet Miers, who used to be the White House counsel. Today was the deadline for the White House to hand over those documents, and they sent the Senate and House Judiciary Committees a letter saying, sorry, it's not going to happen, in this case we're exerting executive privilege.

INSKEEP: And remind people what that means.

SHAPIRO: Well, in the words of the letter, Fred Fielding, the White House counsel, says: Presidents would not be able to fulfill their responsibilities if their advisers, on fear being commanded the Capitol Hill to testify or having their documents produced to Congress, were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions.

In plain English this is saying, these are internal White House conversations, they're protected by the protections that encompass the executive branch, therefore we don't have to hand these over.

INSKEEP: Which is a claim that presidents make all the time, and the presidents and Congress argue over what will happen. Is the White House making any offer to resolve this?

SHAPIRO: They have made an offer. Some months earlier, they said that they would be willing to hand over a limited number of documents and they would be willing to allow White House officials to do off - private, without an oath, without a transcript interviews with the House and Senate Judiciary Committee staffers.

But members of Congress say that's just not acceptable. They've been saying, if you don't have a transcript, people can leave the room and have good faith differences about what was said there.

Senator Patrick Leahy of Vermont, who's the chairman of the Senate Judiciary Committee, was pretty angry when he heard about this this morning. He described the White House's position as Nixonian stonewalling. He said the president and the vice president feel that they are above the law. In America, he said, no one is above the law.

INSKEEP: Well, if you continue to have Congress and the White House just refusing to cooperate with each other, each making a demand that the other one says it cannot accept, who's the referee, ultimately?

SHAPIRO: The courts, eventually. And this morning the White House had a background briefing with senior administration officials. One of them was asked, are you confident you can prevail in court? The response was, well, we hope we can work this out with Congress without going to court. They keep reiterating this offer that Congress says is just flatly unacceptable so it may yet go to court.

Some observers wonder whether this could be a way for the White House to try to stretch this out. You know, a litigation process in court could take a long time eventually…

INSKEEP: Until the end of the Bush administration.

SHAPIRO: Exactly.

INSKEEP: We're talking with NPR justice reporter Ari Shapiro. And you're going to try to help us keep our subpoenas straight, I hope, Ari, because this one we've just been discussing is not the only subpoena at issue.

The Senate Judiciary Committee has also issued subpoenas just this week for documents related to the president's domestic spying program. Where does that stand?

ARI SHAPIRO: Well, the Senate Judiciary Committee issued the subpoenas yesterday. The White House has not yet responded, but they have consistently said that they do not want to hand over these documents. We don't expect them to hand over these documents, quite frankly.

They say that they have given classified briefings to congressional committees in private that ought to satisfy the committees. The committees are not satisfied, and so this, too, may play out in a very similar way.

INSKEEP: Those briefings were not satisfactory at all to people like Senator Patrick Leahy of Vermont?

SHAPIRO: Well, Senator Leahy says he understands how the system works now, how the spying program works. What he wants in this subpoena, what he wants from these documents, is the legal justification that explained why this was permissible in the first place.

INSKEEP: Is that something that would be classified information that would reveal sources and methods, a legal justification?

SHAPIRO: The White House says that nearly everything related to this program is classified. The problem here is that recent congressional testimony showed there was serious dispute in the executive branch over whether this was legal or not. That's why Congress wants to know more about it.

INSKEEP: Ari, thanks.

SHAPIRO: You're welcome.

INSKEEP: That's NPR's justice reporter Ari Shapiro. You're hearing him on NPR News.

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What Is Executive Privilege, Anyway?

Richard Nixon

President Richard Nixon smiles during a March 1973 White House news conference. He wasn't so happy, though, when the Supreme Court ruled against his claims of executive privilege and forced him to hand over audio tapes during the Watergate investigation. © Bettmann/CORBIS hide caption

itoggle caption © Bettmann/CORBIS

President Dwight Eisenhower was the first president to coin the phrase "executive privilege," but not the first to invoke its principle: namely, that a president has the right to withhold certain information from Congress, the courts or anyone else — even when faced with a subpoena. Executive privilege, though, is a murky and mysterious concept. Here, an attempt to clarify the murk.

Does the Constitution allow for executive privilege?

Nowhere does the Constitution mention the term or the concept of executive privilege. The belief that it does, the late legal historian Raoul Berger once said, is one of the greatest "constitutional myths."

So how can a president simply withhold information if the Constitution doesn't give him the power to do so?

Presidents have argued that executive privilege is a principle implied in the constitutionally mandated separation of powers. In order to do their job, presidents contend, they need candid advice from their aides — and aides simply won't be willing to give such advice if they know they might be called to testify, under oath, before a congressional committee or in some other forum.

How long have presidents been invoking executive privilege?

For as long as there have been presidents. In 1792, George Washington rebuffed efforts by Congress and the courts to get information about a disastrous expedition against American Indian tribes along the Ohio River. Washington lost that battle, and he handed over all of the papers that Congress had requested. But that hasn't stopped many presidents over the years from invoking executive privilege.

Who usually wins these battles: the president or Congress?

It can go either way. President Eisenhower successfully kept officials from his administration from testifying at the Army's hearings on Sen. Joe McCarthy. (The hearings concerned allegations that McCarthy had pressured the Army to give preferential treatment to a former aide, and McCarthy's counter-charges.)

During the Watergate investigation, though, President Nixon failed in his attempts to withhold White House audio recordings from special prosecutor Leon Jaworski. Nixon handed over the tapes and, four days later, resigned. In his memoirs, Nixon wrote dejectedly, "I was the first president to test the principle of executive privilege in the Supreme Court, and by testing it on such a weak ground, I probably ensured the defeat of my cause."

Didn't the Nixon case settle the issue of executive privilege once and for all?

No. In fact, in its ruling on the Nixon tapes, the Supreme Court noted "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties." In other words, while rejecting Nixon's particular claim of executive privilege, the court left the door open for future claims by future presidents. And there's a key distinction to keep in mind: The Nixon case was part of a criminal investigation; the current case involving the Bush administration is not.

Is executive privilege a partisan issue?

No. Presidents from both parties have invoked executive privilege. And neither side has a clear winning record. In 1998, President Clinton became the fist president since Nixon to invoke executive privilege and lose in the courts, when a federal judge ruled Clinton aides could be called to testify in the Monica Lewinsky scandal.

Do presidents invoke executive privilege mainly in matters of national security?

No, not at all. Presidents have cited the privilege for all sorts of issues. For instance, the Bush administration invoked the spirit, if the not letter, of executive privilege when it argued that Vice President Dick Cheney need not disclose what was discussed during his Taskforce on Energy meetings. The Supreme Court upheld the administration's claim in 2004. But Justice Anthony Kennedy, writing for the majority, issued this warning: "Once executive privilege is asserted, coequal branches of the government are set on a collision course."

Could this current case — involving requests for documents from Bush administration officials — end up in the courts?

It's possible, but not likely, legal experts say. Neither side wants to get mired in a protracted legal battle, so the prospect of a negotiated solution is more likely. Since 1975, 10 senior administration officials have been called to testify before Congress, but the disputes were all resolved before getting to court. No president has mounted a court fight to keep his aides from testifying on Capitol Hill.

Why has executive privilege been such a contentious issue?

Because it is at the fulcrum of a very delicate balancing act — between a president's right to candid advice and Congress' right to information. Also, executive privilege is a power that political parties tend to support when they control the White House, but abhor when they're out of power. For that reason, neither party is eager for a definitive ruling from the Supreme Court. For its part, the high court seems to be in no hurry to wade into such contentious constitutional waters.

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