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Lawsuit battles president’s executive privilege powers

SHARE Lawsuit battles president’s executive privilege powers

WASHINGTON — President Bush's refusal to let two confidants provide information to Congress about fired federal prosecutors represents the most expansive view of executive privilege since Watergate, the House Judiciary Committee told a federal judge Thursday.

Lawyers for the Democratic-led panel argued in court documents that Bush's chief of staff, Josh Bolten, and former White House counsel Harriet Miers are not protected from subpoenas last year that sought information about the dismissals.

The legal filing came in a lawsuit that pits the legislative branch against the executive in a fight over a president's powers.

The committee is seeking the testimony as it tries to make a case that the White House directed the firing of nine U.S. attorneys because they were not supportive enough of Republicans' political agenda.

The White House says such information is private and covered by executive privilege, the doctrine intended to protect the confidentiality of presidential communications.

House lawyers told U.S. District Judge John D. Bates that subpoenaed White House officials cannot simply skip hearings as Miers did during the committee's investigation. Further, they said, any documents or testimony believed to be covered by the privilege must be itemized for Congress' assessment.

Executive privilege is not a right spelled out in the Constitution, so the legal issues are murky and disputes are normally resolved politically. The suit is risky for both sides. Courts have not been kind to the presidency in fights over subpoenas; Congress could have its power to demand information curtailed permanently.

The White House has said Bush was not personally involved in deciding which U.S. prosecutors to fire and that any White House communications on the matter are off-limits under the privilege. Presidential counsel Fred Fielding declared Miers and Bolten immune from prosecution because their refusal to comply with the subpoenas was done at the White House's direction under the privilege.

He also did not provide a privilege log, arguing that revealing the information sought would compromise the president's access to candid advice.

The result, the committee wrote, is White House defiance of congressional oversight unseen since the presidential intransigence that led to Richard Nixon's resignation.

"Not since the days of Watergate have the Congress and the federal courts been confronted with such an expansive view of executive privilege as the one asserted by the current presidential administration and the individual defendants in this case," according to the House's filing.

The idea that Miers could disregard an order to appear at a hearing simply at the president's request suggests a return to the sentiment expressed in Nixon's statement, as quoted in a 1977 New York Times interview, that "when the president does it, that means that it is not illegal," the House lawyers wrote.

Even during Watergate, however, the courts were restrained.

Nixon reluctantly allowed his aides to testify on Capitol Hill but refused to surrender his tape recordings to prosecutors. The Supreme Court ordered the tapes turned over, citing the criminal investigation, but avoided the question of whether presidents can refuse demands from Congress.

The House in February voted 223-32 to hold Bolten and Miers in contempt. Most Republicans boycotted the vote. House Speaker Nancy Pelosi, D-Calif., asked Attorney General Michael Mukasey to refer the matter to a federal prosecutor. Mukasey refused and the committee sued on March 10.

The committee's top Republican, Rep. Lamar Smith, said it found no evidence of wrongdoing by the administration in the firings after a nine-month investigation, so House Democrats "will be hard pressed to prove an urgent need for the information and testimony requested."

The Texas lawmaker added, "Every president has the right to have confidential conversations with his senior advisers. Both Republican and Democratic presidents have fought to protect this right."

House Democrats say the record reveals numerous questionable or outright false statements to Congress and the public by other members of the administration, including purported reasons for seeking the forced resignations and the scope of White House involvement.

They say that executive privilege does not cover documents whose contents are widely known, previously released or that were the subject of extensive, previously authorized testimony.

In the court filing, the House asks Bates to:

rule that Miers must appear before the committee, be sworn and respond to questions.

rule that each invocation of the privilege must be itemized.

grant an injunction that Miers and Bolten produce privilege logs identifying all documents withheld under executive privilege.

The administration is scheduled to respond to the House filing on May 9.