White House and Congress in Showdown over Aides' Testimony

WASHINGTON — The White House on Monday churned toward a possible high-stakes legal battle with Congress by defying two committees' orders to cooperate with their investigation of the firing of federal prosecutors.

White House counsel Fred Fielding said in a letter to the panels' chairmen that President Bush is invoking executive privilege and instructing Harriet Miers, his former counsel, and Sara Taylor, the former White House political affairs director, not to comply with congressional subpoenas for their testimony.

Fielding also said the White House would ignore the committees' request for a list of documents it was refusing to turn over.

House Judiciary Committee Chairman John Conyers, D-Mich., promised a fight.

"Contrary to what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally," he said.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., blasted the action as "more stonewalling from a White House that believes it can unilaterally control the other co-equal branches of government."

The committees are trying to determine whether nine U.S. attorneys were improperly fired last year for pursuing public corruption cases against Republicans or failing to hasten investigations against Democratic-leaning voter registration groups.

In the letter Fielding submitted just prior to a Monday deadline set by Congress, the White House reiterated Bush's claim that a president must be able to get "candid advice" without fear that it could become the subject of "open-ended inquiry by another branch of government."

Fielding defied the lawmakers' request for justification of the decision.

"You may be assured that the president's assertion here comports with prior practices in similar contexts, and that it has been appropriately documented," he wrote, declining to provide the requested "privilege log" detailing what documents are being withheld and why.

Fielding called the request "a substantial incursion into presidential prerogatives."

Despite the tough talk, Fielding again offered to provide the officials for interviews if Congress drops the subpoenas. Lawmakers previously rejected that offer, because the White House has said the aides would not testify under oath and no transcript of their remarks was to be made.

Despite Bush's assertion of privilege, it remained possible that the former aides could appear before Congress.

Leahy said he still expected Taylor to testify as scheduled before his panel on Wednesday. He said he believed that she could still answer questions about e-mails she received about the attorney firings that were released earlier by the Justice Department, as well as e-mails she sent via a Republican National Committee account outside the White House.

Miers is scheduled to testify Thursday before the House panel, and news reports Monday said that negotiations were continuing about a possible appearance.

If Taylor obeys the White House, where the 32-year-old has spent most of her career, she could face a contempt sanction by the Senate with enforcement through criminal courts, said her lawyer.

Taylor's lawyer said his client is caught in a "monumental clash" between Congress and the White House, where the 32-year-old has spent most of her career.

"Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee," W. Neil Eggleston said in a Saturday letter to the panel.

"We urge the Senate to direct its sanction against the White House, not against a former staffer," he wrote.

Former Justice Department official Martin Lederman, now a professor at Georgetown University Law Center, said lawmakers could send their sergeant-at-arms to the White House to arrest officials who fail to comply with subpoenas. Arrest could be followed by the spectacle of detainment in the Capitol jail until the officials comply.

"Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official," Lederman said.

Alternatively, Congress could file a civil suit in federal court to seek a judicial order forcing the White House to comply.

Historically, judges have been hesitant to intervene in battles between the White House and Congress. Lederman said judges prefer to persuade the two sides to work out an agreement.

Legal experts say such disputes between the branches of government usually end with negotiations, not in contempt citations or courthouse showdowns.

Indiana University Law School Professor Dawn Johnsen, former head of the Justice Department's office of legal counsel, said congressional contempt citations are difficult to enforce because that responsibility falls to the Justice Department, headed by White House appointees.

The president has authority over the attorney general who oversees U.S. attorneys. "So when the alleged crime involves the president himself or his official, we have a problem," Johnsen said. "How do you enforce something when the president is self-interested?"

The battle over congressional testimony on the attorney firings is just one of several current power struggles between the White House and the Democratic-led Congress.

In a separate action Monday, Conyers asked Bush to cooperate in a committee investigation of executive clemency actions, including last week's decision to erase the 30-month prison sentence ordered for former aide I. Lewis "Scooter" Libby, convicted of lying to federal investigators about the White House role in disclosing the identity of a CIA agent.

Conyers asked Bush to waive executive privilege and provide information that could help determine the motive for the action in the Libby case.

Conyers, who has scheduled a Wednesday hearing on the topic, said he wants to know if "any consideration (was) given to the impact commutation would have on the possibility that Mr. Libby might yet decide to cooperate with the special prosecutor" in the case.

White House spokesman Tony Fratto said the administration would respond "appropriately," but indicated Conyers should not count on much cooperation.

"It's notable that Chairman Conyers concedes that his request would require the president to waive executive privilege," Fratto said. "We, of course, share the view that the president is entitled to candid and confidential advice from his aides."

At the same time, Senate Democrats are renewing legislative efforts to force a reduction of the U.S. military role in Iraq, an effort that the White House contends impinges on the president's powers as commander-in-chief.