Leahy finds chance to fight executive privilege strategy
Long after Nixon, Vt. senator leads effort against Bush
WASHINGTON -- Thirty-three years ago, Patrick Leahy, a local prosecutor from Vermont, was so outraged at President Nixon's attempt to use executive privilege to hide damaging revelations during the Watergate scandal that he used the issue to help him win election to the US Senate.
Now, Leahy has found a chance to strike a blow against executive privilege: As chairman of the Senate Judiciary Committee, Leahy is leading the charge against President Bush's use of the tactic as grounds for refusing to allow adviser Karl Rove and others to testify about the firing of eight US attorneys.
Bush has pilloried Democratic demands for sworn testimony as "playing politics," saying he does not want Rove to be submitted to a "show trial" under the klieg lights of Congress. Leahy, in turn, has vowed not to blink first, saying in a Globe interview that Bush's position "makes my blood boil."
Dismissing Bush's offer to have Rove and others give private statements to congressional staff members, Leahy said, "I'd rather to go court than accept that offer."
But while Leahy insists that his threat to issue subpoenas for Rove's testimony is serious, he is simultaneously trying to increase political pressure on Bush to agree to have his aides testify without a court fight.
By releasing a steady stream of documents that raise questions about the White House's role in the firings -- questions that only increased after Thursday's testimony of former Justice Department chief of staff D. Kyle Sampson -- Leahy is hoping the White House eventually will cave in and allow Rove to testify.
There are also practical reasons for Leahy to avoid a subpoena: If Rove fights a congressional committee's subpoena, it would take a vote of the full House or Senate to find him in contempt. The case would then be referred to the local US attorney, who would decide how to proceed.
Victoria Toensing , who served as deputy assistant attorney general in the Reagan administration, said that if she were Rove's lawyer, she would say, "Bring it on." The legal fight over a subpoena, she said, would "take about 2 1/2 years."
For his part, Leahy said he is willing to sit tight and let the pressure on the White House build.
Leahy, who turned 67 yesterday, has long been one of the Bush administration's chief antagonists. He opposed Attorney General Alberto Gonzales's nomination on grounds that Gonzales was too beholden to Bush, and has been one of the leading critics of what he considers to be the White House's misuse of executive powers.
The antagonism runs both ways: In 2004, when Vice President Dick Cheney ran into Leahy on the Senate floor, Cheney cursed the senator with an epithet.
Louis Fisher, a Library of Congress specialist on constitutional law and author of "The Politics of Executive Privilege," said no one can predict whether the Supreme Court would rule in favor of Congress or the White House on the subpoena issue. But he said Congress has extraordinary leverage to prompt the White House to compromise on the issue.
"If it looks like instead of cooperating to get the story out, the White House is blocking an inquiry, that weakens the White House," Fisher said.
Bush, however, has maintained that he will continue to fight for executive privilege as a matter of principle. He said presidential aides would be reluctant to offer frank advice if they were subject to congressional subpoenas.
Leahy said Bush's stance reminds him of the way Nixon tried to avoid providing the Watergate tapes to a prosecutor by citing executive privilege. Nixon's effort failed when the US Supreme Court ruled unanimously against him.
"There was a strong feeling in the country that [the president] shouldn't be interfering with prosecution and law enforcement," Leahy said.
"It was one of the things I felt strongly when I was running [for Senate in 1974] because I was a prosecutor and I knew how strongly I would have resisted any attempt to politicize my prosecutor's office. . . . I talked about that a great deal in my campaign. It is one of the reasons I went on the Judiciary Committee."
There are some significant differences, however, between what happened in 1974 and now. Nixon refused to turn evidence over to a prosecutor, while Bush is declining to allow aides to testify before Congress. "Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications . . . can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances," then-Chief Justice Warren Burger wrote in the Nixon case.
That part of the decision has been cited by proponents of subpoenas for Rove and others as justification for compelling sworn testimony. But the next sentence in Burger's opinion has been cited by those who back Bush's refusal to allow Rove to testify: "The president's need for complete candor and objectivity from advisers calls for great deference from the courts." 