Battles Loom Over Subpoenas

Posted June 27, 2007 at 6:52pm

The fuse is lit for a summer of legal fireworks in the escalating conflict between Democrats on Capitol Hill and the Bush administration over compliance with subpoenas in multiple, wide-ranging oversight investigations.

If the two sides cannot come to agreement, contempt of Congress citations could ultimately be issued on a range of subjects, from warrantless wiretapping to the probe into the ousting of nine U.S. attorneys in 2006.

The House and Senate Judiciary committees have set a deadline of 10 a.m. today for White House counsel Fred Fielding to comply with a subpoena for internal White House documents related to the Justice Department probe. Former White House Political Director Sara Taylor also has been asked to provide records.

But as of Wednesday evening, a spokesman for the House Judiciary Committee said there has been no “substantive contact” with Fielding over the document request.

Chairman John Conyers (D-Mich.) “expects that the White House will respect the rule of law,” said the spokesman. “Of course, the chairman would also cooperate with a realistic proposal to negotiate.”

Cooperation was not the watchword on the Senate side Wednesday as Judiciary Chairman Patrick Leahy (D-Vt.) issued subpoenas for documents related to the National Security Agency’s warrantless wiretapping program from the National Security Council, White House, Justice Department and the vice president’s office. The deadline for compliance is July 18.

In that instance, too, Leahy and Judiciary member Charles Schumer (D-N.Y.) said they may have to take the rare step of issuing contempt of Congress citations in the event that the White House refuses to cooperate.

“They will probably stonewall but there are ways we can go further,” Schumer hinted in a Wednesday press conference.

Meanwhile, House Oversight and Government Reform Chairman Henry Waxman (D-Calif.) has said he will decide today on issuing subpoenas to former White House security personnel in connection with whether classified data has been mishandled by the White House.

Democratic committee officials were hopeful this week that voluntary testimony could be arranged, but it was unclear at press time if an agreement had been reached. One GOP committee aide said a deal was more likely because Democrats had relented on allowing attorneys for witnesses to be present at interviews.

The flurry of subpoena activity comes as the Democratic Congress has exponentially stepped up its oversight activities of the Bush White House. In response, Fielding, an experienced Washington, D.C., hand who served as President Ronald Reagan’s counsel from 1981 to 1986, has expanded the counsel’s office to 22 lawyers.

Although Democrats cautioned that it was premature to speculate about next steps, they are running out of options — besides legal ones — if the White House does not comply with the various subpoena requests.

Conyers said last week that “enforcement action may need to be taken” if the White House refuses to comply with subpoenas for documents and the testimony of Taylor (the House has requested she testify on July 11) and former White House counsel Harriet Miers (the Senate Judiciary Committee wants to talk to her on July 12).

Fielding has offered to allow Taylor and Miers to talk with Hill investigators behind closed doors, without an oath or a transcript, terms that Conyers and Leahy have both rejected.

It’s unclear the specific route Democrats would have to take to approve the rare contempt citations. But if such a citation were approved by the full chambers, it would be sent to the U.S. attorney for the District of Columbia for grand jury action.

But that move in itself likely would cause legal fireworks as U.S. attorneys are subordinate to the Justice Department and Attorney General Alberto Gonzales, who is himself at the center of the prosecutor probe in which several lawmakers have called for his resignation.

In the 1982 case of former Environmental Protection Agency Administrator Anne Gorsuch Burford, for instance, the federal prosecutor for the District refused to impanel a grand jury over a contempt citation.

The two parties eventually worked out an agreement for the Reagan administration to turn over wanted documents, but not until after the Justice Department sued the House and the case was dismissed.

The subpoenas issued Wednesday over the NSA’s warrantless wiretapping program also could lead down the same path. Most ominously for the White House, the subpoenas have bipartisan support as the Senate Judiciary Committee voted last week, 13-3, to authorize Leahy to issue the subpoenas.

Leahy noted Wednesday that Congress had issued nine requests for information related to the wiretapping program and had been repeatedly rebuffed.

“There is no legitimate argument for withholding the requested materials from this committee,” Leahy wrote in a June 27 letter to Gonzales.

“The Administration cannot thwart the Congress’s conduct of its constitutional duties with sweeping assertions of secrecy and privilege,” he added. “The Committee seeks no intimate operational facts and we are willing to accommodate legitimate redactions of the documents we seek to eliminate reference to these details.”

Rob Silverblatt contributed to this report.