Congress, Bush near a court fight

WASHINGTON -- President Bush refused yesterday to turn over documents and urged two former aides to refuse to testify before congressional committees about the firings of nine US attorneys, renewing his claim of executive privilege in a case that could lead to a rare court battle over congressional contempt citations.

In a letter to the chairmen of the House and Senate Judiciary committees, White House counsel Fred F. Fielding called their demands "unreasonable because it represents a substantial incursion into presidential prerogatives."

Angry Democrats, who have sought the information from the Bush administration since the spring, threatened to take the unusual step of voting on contempt-of-Congress citations against the aides and the White House -- a move that could set the stage for a drawn-out court battle that some analysts said could outlast Bush's presidency.

Senate Judiciary Committee chairman Patrick J. Leahy , Democrat of Vermont, whose request for Bush to justify the legal rationale for his assertion of executive privi lege led to Fielding's letter, said the president's refusal to give Congress what it wants amounted to "more stonewalling from a White House that believes it can control the other co equal branches of government."

With no end to the standoff in sight, and subpoenas issued for the information and testimony Congress wants, some analysts said Fielding's letter signaled a new phase in the standoff that could lead Congress to vote on the contempt citation.

If the contempt vote succeeds, the matter would then be referred to a US attorney -- potentially setting off a legal clash about whether a federal prosecutor must present the matter to the courts.

The matter revolves around the Justice Department's decision to fire nine US attorneys last year, ahead of the congressional elections. Democrats have said the firings were politically motivated, with one of the fired prosecutors, David Iglesias of New Mexico, calling the sackings a "political hit job."

Democrats have said they want to know what role Bush's top aides, including political strategist Karl Rove, played in the firings.

When Congress first demanded White House cooperation in the investigation last March, both sides said they hoped to negotiate a resolution.

Sara M. Taylor, former White House political director, and Harriet E. Miers, former White House counsel, have drawn the interest of the congressional committees because their names are cited in e-mails sent by Justice Department officials about the firings. White House officials have offered a compromise, allowing members to interview Taylor and Miers behind closed doors and off the record.

But Democrats, and some Republicans, are insisting the two must testify in public, under oath, and for the record.

After the Judiciary committees pressed for cooperation, the White House invoked executive privilege last month in refusing to hand over the information. The committees then asked Bush for a log of every document he has declined to give Congress and insisted on public sworn testimony from Miers and Taylor this week.

In his letter yesterday, Fielding wrote that the two committees do not have the power to get information used in Bush's decision-making process that is protected by executive privilege.

Moreover, Fielding wrote, "We are aware of no authority by which a congressional committee may direct the Executive to undertake the task of creating and providing an extensive description of every document" covered by executive privilege.

Unless Congress and the White House can reach an agreement soon, the next step could be a congressional committee vote on contempt citations for Bush's former aides for refusing to obey the subpoenas. That would be followed by a contempt vote in the full House or Senate.

Martin S. Lederman, a law professor at Georgetown University, said that 99 percent of confrontations between the White House and Congress over such subpoenas are resolved through negotiation. But he said that yesterday's developments signal the tug of war between Bush and lawmakers might wind up in court.

Lederman said the White House does not want to provide documentation or allow public testimony that would detail its role in the firings of the US attorneys.

While officials have given Congress reams of documents, Lederman said, "the White House does not want to give Congress the information on the one question" it wants answered.

Mark J. Rozell, professor of public policy at George Mason University, said the White House's renewed assertion of executive privilege could be part of a strategy to delay action until Bush leaves office in January 2009.

"It is possible this could drag on beyond the Bush presidency," Rozell said. "It is even possible that the administration is engaging in a stalling tactic to run the clock out during Bush's presidency."

While the courts have upheld presidential assertions of executive privilege, the courts have also made exceptions, most notably in 1974 during the Watergate scandal. In that instance, the US Supreme Court required President Nixon to turn over White House tapes to a federal grand jury.

Nonetheless, "it is hard to predict how a court will decide such an issue," Rozell said. "Both sides have a valid legal point. Congress has a right to information to investigate , and it cannot conduct the investigation without the testimony and documents. On the other hand, it is a legally recognized principle that the president has the right to confidentiality."

The Senate Judiciary Committee has scheduled Taylor's testimony for tomorrow, and Miers is slated to testify before the House Judiciary Committee on Thursday. It is not clear yet whether they will testify fully or follow Bush's order and decline to answer certain questions. If Congress determines that Miers and Taylor did not comply with the scope of the subpoena, it could try to force their testimony by voting them in contempt.

W. Neil Eggleston, an attorney for Taylor, said in a letter to the White House and the Judiciary committees that Taylor was willing to testify and was unfairly being put in the middle of the fight.

"It is unfair to Ms. Taylor that this constitutional struggle might be played out with her as the object of an unseemly tug of war," Eggleston wrote. "She has two untenable choices: She can follow the President's direction and face the possibility of a contempt citation by the Senate, with enforcement through the criminal courts . . . or she can attempt to work out an accommodation with the Senate, which will put her at odds with the president."