Bush and Congress locked in power dispute

A flurry of subpoenas is pushing Congress and President Bush toward a historic clash over executive powers that could wind up in the courts.

For now, lawmakers are targeting two issues: the dismissal of nine US attorneys and the Bush administration's authorization of warrantless domestic surveillance.

If the president does not comply with these subpoenas Senate Judiciary Chairman Patrick Leahy said he will seek to cite the White House for criminal contempt of Congress. But the outcomes of these disputes also could tip the balance of powers between Congress and the executive branch for a generation.

"It feels like a climactic moment," says Julian Zelizer, a congressional historian at Princeton University. "The Bush administration has been about presidential power since they took office – even before 9/11."

"We've seen a push by Vice President Cheney to reverse everything that happened in the 1970s and fully restore the powers of the presidency. Now, Congress is responding to what he has done," he adds.

At issue is whether lawmakers have a right to question, under oath, two senior White House aides on the attorney firings, which critics say were motivated for improper political reasons or to squelch ongoing corruption investigations.

In a new batch of subpoenas last week, lawmakers are also seeking more information on the legal justification for the Bush administration's warrantless domestic surveillance program.

On Thursday, the White House invoked executive privilege in refusing to allow the release of documents requested by the Senate and House Judiciary Committees. If subpoenas for two former aides to testify are not withdrawn by the response date of July 12, Mr. Bush will also cite executive privilege in not permitting them to appear, said a senior administration official in a briefing last week.

"For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice," said White House counsel Fred Fielding, in a letter to the Senate and House Judiciary committees last week.

In March, Bush offered to allow aides to answer questions in a closed meeting with some committee members, without a transcript and not under oath. He also offered to release documents on the firings that involved communications between the White House and Justice Department, but not internal White House communications. The Bush administration says that offer is off the table until the subpoenas are withdrawn.

In response, the chairmen of the Judiciary committees called on the administration to "immediately provide us with the specific basis for your claims regarding each document withheld."

"We had hoped our Committees' subpoenas would be met with compliance and not a Nixonian stonewalling that reveals the White House's disdain for our system of checks and balances," said Senate and House Judiciary Chairmen Leahy (D) of Vermont and John Conyers (D) of Michigan in a Jun. 29 letter.

Since World War II, presidential advisers have testified before congressional committees 74 times, either voluntarily or compelled by subpoena. When Republicans controlled the House, the Government Reform Committee issued at least 27 subpoenas to Clinton administration advisers, they added.

Moreover, Judiciary panel investigations found many inconsistencies in the official explanations of the firings of US attorneys last year. This "heightens our concern about the involvement of White House officials in these firings and in the inaccurate testimony given to our Committees, about them, including possible obstruction of justice and other violations of federal law," they wrote.

Should the standoff continue, Congress's next option is to seek a Senate or House contempt citation and take the matter to a grand jury. Since 1975, Congress has issued only 10 such contempt citations, but typically a compromise is reached before criminal proceedings begin.

Sen. Arlen Specter, the ranking Republican on the Senate Judiciary panel, urged Democrats to try to resolve the issue. "We ought to give consideration to bringing in those individuals and find out what we can under the president's terms. It doesn't preclude us from proceeding with the subpoenas at a later time," he said in a news briefing last week.

While Congress is doing a lot of wheel spinning, the Justice Department continues in "total disarray," Senator Specter added. A court battle could go on for two years, so Congress should "take what information we can get now [and] try to see if we can't wind this up," he said.

The stakes are high on both ends of Pennsylvania Avenue, legal analysts say. "The political branches realize it's in their own best interest to reach some sort of accommodation," says Carl Tobias, a law professor at the University of Richmond School of Law.

"It would take a couple of years by the time it's all resolved. In some sense the White House wins the war of attrition. But it's also being tried in the court of public opinion, and the White House looks like it's trying to hide something," he adds.

A new round of subpoenas by the Senate Judiciary Committee over the NSA warrantless surveillance program threatens another clash with the White House over executive privilege. Leahy said that Congress was not seeing operational details on the program, but rather its legal justification. Last week, White House spokesman Tony Snow called the subpoenas "an outrageous request."

This issue does not fall out along simple partisan lines. The vote in the Senate Judiciary Committee to authorize subpoenas on the warrantless surveillance program was 10 to 3.

"There are a lot of Republicans who have been very uncomfortable both with the expansion of presidential power and the lack of deference to Congress at all by the Bush administration," says Zelizer.

But critics say the NSA program poses even more significant questions over executive power than the attorney firings. "Domestic wiretapping is a critical issue for congressional oversight to ensure that the authorities granted to the executive [branch] to protect the nation do not trample constitutional rights of our citizens. Were we to allow that, we would have lost dramatically without the terrorists taking another life," says Richard Ben-Veniste, a former 9/11 commissioner.