The US Attorney Subpoenas: Avoiding Constitutional Confrontation

JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that for the good of the government and the nation Congress and the White House must promptly defuse the constitutional confrontation now brewing over subpoenas for documents about the forced resignations of nine U.S. Attorneys...



In late June, President George W. Bush rejected congressional subpoenas for documents about the forced resignations of nine U.S. Attorneys who served in his administration. White House rejection of those subpoenas could spark a constitutional standoff between it and lawmakers. If Congress and the White House are to avoid a constitutional battle, they must work carefully together in finding common ground.

On June 13, lawmakers served subpoenas on ex-White House Counsel Harriet Miers and former political director Sara Taylor for testimony and White House Chief of Staff Josh Bolten for documents related to the firings. The subpoenas' issuance ended three months of efforts by legislators and the White House to reach an agreement about the material sought.

On March 20, the White House offered to have the staff privately interviewed without an "oath, transcript, subsequent testimony," or subpoenas' subsequent issuance. A few members of the Senate and House Judiciary Committees would jointly perform the interviews that would be restricted to communications between the White House and individuals outside it, particularly legislators, regarding the nine dismissals.

That day and over the ensuing three months, the chief executive and his aides have incessantly spoken of a "reasonable offer" and executive privilege, asserting that the president and those who succeed him need candor from high-ranking assistants. Mr. Bush and his spokespeople have pledged to resist Congress, in lawsuits if they must, over subpoenas and urged legislators to not politicize the controversy.

From March 20 until today, Senator Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, and Representative John Conyers (D-Mich.), who chairs the House Judiciary Committee, have vociferously rejected the offer, contending that testimony must be under oath and with transcripts for real accountability. By March 22, the Senate and House Judiciary Committees had voted to authorize the issuance of subpoenas.

The chairs have attempted numerous times to work with the White House on the testimony and documents requested. They have sent Mr. Bush multiple letters and participated in meetings to resolve disagreement. Senator Arlen Specter (R-Pa.), the ranking GOP member, has also instituted several efforts to forge an accord. On June 13, after three months of endeavor to reach accommodation over the testimony and documents, the Judiciary panels voted to issue subpoenas.

The June 28 White House response essentially threw down the gauntlet and racheted up the rhetoric. The White House Counsel asserted that issuing subpoenas and attempting to compel information's disclosure, rather than taking Mr. Bush's reasonable offer, have fomented confrontation. Press Secretary Tony Snow castigated lawmakers for apparently pursuing a strategy of "destruction." Senator Leahy criticized the White House for "Nixonian stonewalling," which evidenced further disdain for Congress. Representative Conyers correspondingly described executive privilege's assertion as "unprecedented in its breadth and scope [and] reckless; it's a form of governmental lawlessness that is really astounding." If the White House fails to change course, this might force a constitutional confrontation, as legislators may attempt to enforce the subpoenas against White House officers.

Both lawmakers and the White House should retreat from the constitutional edge and craft some agreement. For instance, legislators might take the private interview offer and ascertain whether the sessions yield enough, as Senator Specter recently proposed. For its part, the White House may think about witness testimony with transcripts but not oaths and keeping this material sealed for a prolonged time. If Congress and the White House creatively negotiate in good faith, they should be able to resolve the controversy.

Not reaching agreement could be politically damaging to both sides. For example, attempting to have the federal judiciary hold White House officials in contempt of Congress will consume much time. Senator Specter admonished that failure to secure the information pursued will slow an already delayed investigation. The White House might concomitantly seem as if it is hiding material, should the administration continue resisting lawmakers' actions.

Congress and the White House must promptly defuse the constitutional confrontation that is now brewing for the good of the government and the nation. Legislators and the president should reach an accord which permits him to foster White House interests and lawmakers to protect their valid concerns respecting U.S. Attorney hiring and firing.


Carl Tobias is the Williams Professor of Law at the University of Richmond


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