Battle heats up over fired US attorneys

Congress is threatening contempt citations, while President Bush claims executive privilege.

By , Staff writer of The Christian Science Monitor

Think the months-long confrontation between the White House and Congress over the dismissal of federal prosecutors already has been heated? Just wait. It's now on the verge of escalating into all-out legal war.

President Bush, citing executive privilege, has refused to provide testimony and documents requested by the Democrat-led Congress. Congressional leaders are threatening contempt citations in response. Both sides seem willing to fight over what they deem to be their constitutional prerogatives.

If they do, the ensuing court battle could be bitter and draining and drag on through the administration's final months, hampering Mr. Bush's attempt to shape a domestic legacy.

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"It's a huge distraction to the Bush presidency's ability to focus on other matters, no doubt about it," says Mark Rozell, an expert on executive privilege at George Mason University.

This struggle comes at a time when a real war in Iraq is straining US resources and raising tensions between a Republican White House and a Congress controlled by Democrats.

The direction of the political struggle may be clearer as early as Wednesday, when former White House political director Sara Taylor is scheduled to appear before the Senate Judiciary Committee to discuss what she knows about last year's sudden firings of eight US attorneys.

On Monday, White House counsel Fred Fielding sent the Senate panel a combative letter in which he indicated that the White House would not turn over documents related to the controversy and would try to block the testimony of Ms. Taylor and other former and current White House officials.

"The assertion of executive privilege here is intended to protect a fundamental interest of the presidency: the necessity that a president receive candid advice from his advisers," wrote Mr. Fielding.

US attorneys serve at the pleasure of the president, who can hire and fire them at will. However, Congressional panels since this spring have been probing last year's sudden dismissals. Lawmakers want to determine whether the White House ordered them to for reasons that might be deemed politically improper, such as an attempt to hurry prosecutions that could have hurt Democrats in last fall's elections.

As a legal matter, Bush's claim of executive privilege in this case faces difficulties, say experts.

Courts have held that the executive privilege does exist. But in the past, it has been applied to direct communications between the president and his top aides.

Claiming privilege for communications between White House officials and Cabinet counterparts at the Department of Justice may be more of a stretch. Nor does the president have any real power to prevent former employees such as Taylor or ex-White House counsel Harriet Miers from testifying.

"But it's hard to imagine that people who have been so loyal to the White House will go against the president's wishes," says Carl Tobias, a law professor at the University of Richmond in Virginia.

However, it's hard to predict how the US Supreme Court might rule on the issue, if a case reaches that far. In general, the current court has come down on the side of executive power, say experts.

And if Congress does issue contempt citations for anyone in this matter, lawmakers' next step would be a criminal referral to Jeff Taylor, US attorney for the District of Columbia.

Mr. Taylor – a Bush appointee – would then have to decide how to pursue the matter.

"On a case like this, does anyone believe the US attorney is going to bring a criminal contempt citation against anyone?" asked Sen. Arlen Specter (R) of Pennsylvania, ranking minority member of the Senate Judiciary Committee, in a wire-service interview on Monday.

In addition, any legal process in this case would be a lengthy one. And the end of the Bush administration is in sight. In resisting congressional subpoenas on the prosecutor issue, White House officials may be attempting to run out the clock, says Professor Rozell.

Past presidents have sought compromise on executive-privilege issues in part to limit political damage. To the public, a privilege claim can make it seem as if the White House has something to hide.

But Bush, with low popularity ratings, may have little to lose, politically speaking – as shown by his commutation of the sentence of former vice presidential aide I. Lewis "Scooter" Libby.

"Perhaps he even sees this as an opportunity to make himself look strong," says Rozell.

There may be political dangers for Congress in this case as well, say some experts. Given Iraq, the failure of immigration legislation in the Senate, spiking gas prices, and other current problems of public policy, "to imagine that the public will focus intently on this one problem – well, it's not going to happen," says Norman Ornstein, a political scholar at the American Enterprise Institute in Washington, D.C.

Thus the battle over fired attorneys could become for the Bush White House what the congressional investigation into the Iran-contra affair was for the Reagan administration – a long, draining legal exercise that causes eight years of life in the White House to end on a sour note.

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