CQ TODAY – LEGAL AFFAIRS
Aug. 8, 2008 – 7:04 p.m.
White House Signals Desire to Negotiate on Subpoenas

The White House signaled Friday that it is willing to negotiate an end to a dispute over congressional subpoenas for current and former officials even as the Justice Department asked a federal appeals court to settle the matter.

“The fact that the executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive path forward,” White House counsel Fred F. Fielding wrote House Judiciary Committee Chairman John Conyers Jr., D-Mich.

Fielding offered to open staff discussions next week, and Conyers accepted.

“I am glad that Mr. Fielding has agreed to my suggestion of attempting to resolve this matter by negotiations, and we will, of course, set up a meeting with his staff for next week,” Conyers said in a statement.

U.S. District Court Judge John D. Bates ruled July 31 that administration officials were wrong not to comply with the Judiciary panel’s subpoenas for documents and testimony about the 2006 firings of nine U.S. attorneys. President Bush invoked executive privilege and instructed White House chief of staff Joshua B. Bolten and former White House counsel Harriet Miers not to comply with the subpoenas. Bolten was subpoenaed for documents; Miers was subpoenaed for documents and testimony.

Bates ordered Bolten and Miers to turn over non-privileged documents, and to describe documents withheld on privilege grounds. Bates also ordered Miers — who chose not to appear before the committee — to testify and invoke executive privilege on a question-by-question basis.

Congressional Democrats have seized on Bates’ order to try to enforce their subpoenas. The administration appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit after asking Bates on Thursday to stay his order. The administration told Bates it intends to ask the circuit court to expedite its appeal, under a schedule in which all briefs and argument would be completed by November.

“Declining to stay the order would impose the very harm — compelled appearance of the president’s closest advisers — that the defendants say the Constitution prohibits, and which they seek to appeal,” Justice lawyers wrote in the motion filed on behalf of Bolten and Miers.

On Aug. 1, the House Judiciary Committee sought compliance from Bolten and Miers in light of Bates’ order.

Fielding’s overture is a rhetorical softening of the hard-line stance the administration has taken for more than a year in the matter. But it remains to be seen whether the administration really has a new-found willingness to negotiate.

Last year, the White House offered to make Miers and other current and former White House officials available for private interviews, with no oaths, no transcripts, and only on the condition that the committee make no subsequent demands for information. Fielding offered to provide communications between the White House and other entities, such as the Justice Department, about the firings, but put internal White House communications off limits. Conyers swiftly rejected that offer, and Fielding has not budged at all before Friday’s letter.

The case is highly unlikely to be resolved before Bush leaves office in January, and the subpoenas expired at the end of the 110th Congress. If Democrats control the House in the 111th Congress, the Judiciary Committee likely would issue new subpoenas.

Source: CQ Today
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