As expected...

White House Will Deny New Request In Attorneys Probe

Bush to Defy Congress, Sources Say By Peter Baker

Washington Post Staff Writer

Sunday, July 8, 2007; A03 The White House has decided to defy Congress's latest demand for information regarding the dismissal of nine U.S. attorneys, sources familiar with the decision said yesterday. Such an action would escalate the constitutional struggle and propel it closer to a court showdown. Senate and House committees have directed President Bush to provide by tomorrow a detailed justification of his executive privilege claims and a full accounting of the documents he is withholding. But White House counsel Fred F. Fielding plans to tell lawmakers that he has already provided the legal basis for the claims and will not provide a log of the documents, the sources said. The standoff suggests that neither side is prepared to budge in the fight over documents and testimony in the widening U.S. attorney investigation. Officials in both camps said no serious negotiations are taking place to resolve the dispute. Fielding plans to follow up his letter by further asserting executive privilege later this week, the sources said, directing former White House aides Harriet E. Miers and Sara M. Taylor not to testify in response to congressional subpoenas.

So now what? Well, the conventional wisdom is that the Congress goes to court to contest the invocation of executive privilege. How might that go? Well, there are two views of that. One grounded in reality, and one grounded in Bushoisie fantasy.

In reality, there are two distinct types of executive privilege claims the Bush "administration" can make regarding the testimony and documentation sought: 1) presidential communications privilege, and; 2) deliberative process privilege.

The presidential communications privilege, by far the stronger of the two, applies pretty much to what its name tells you, and little else. That is, it applies only to actual communications with the president that occurred during the decision-making process. In order to invoke this particular type of privilege, therefore, the "administration" will have to admit that the president was personally involved in the decision-making regarding the firing of the U.S. Attorneys -- something it has denied to this point.

What does the deliberative process privilege protect?

[I]t allows the government to withhold documents and other materials that would reveal"advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."

But Morton Rosenberg of the Congressional Research Service has testified repeatedly to Congressional committees on the question, including this 2002 appearance before the House Government Reform Committee, in which he noted:

In the last 80 years Congress has consistently sought and obtained deliberative prosecutorial memoranda, and the testimony of line attorneys, FBI field agents and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Department of Justice activities. It appears that the fact that an agency, such as the Justice Department, has determined for its own internal purposes that a particular item should not be disclosed, or that the information sought should come from one agency source rather than another, does not prevent either House of Congress, or its committees or subcommittees, from obtaining and publishing information it considers essential for the proper performance of its constitutional functions. We are aware of no court precedent that imposes a threshold burden on committees to demonstrate, for example, a "substantial reason to believe wrongdoing occurred" before they may seek disclosure with respect to the conduct of specific open and closed criminal and civil cases. Indeed, the case law is quite to the contrary. An inquiring committee need only show that the information sought is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern.

All this adds up to... what, exactly?

"The White House position is extremely weak," Breuer said. "You can invoke privilege if it's honestly believed, but Congress has an absolute right to understand the basis on which you're claiming privilege. . . . I think the administration has decided that, at this point, they want to fight it as long as they can. It may go to court."

All well and good, to a certain extent. But note what's happening here. The White House position is "extremely weak." But more than that, it's a position that's been to court and lost before. The "administration," though, seeks to burn up the calendar by forcing Congress to reinvent the wheel, just to prove to the American people that the wheel was, in fact, invented at one point. Which will be proven by showing the court the first wheel, and then describing the round and rolling properties of the object the White House claims is something completely different.

So that's reality. Now for the fantasy:

David B. Rivkin, a senior lawyer under Presidents Ronald Reagan and George H.W. Bush, agreed that the White House may be eager to go to court on this issue -- because Fielding believes he has a strong case, not the other way around. Congress has a weak claim to demand internal documents and testimony from the executive branch, he said, since the president has the right to fire U.S. attorneys without input from lawmakers. "The president has pretty much absolute power in this area," Rivkin said. "I think the decision is that they might as well have a serious legal fight about it" because the administration is "highly likely to succeed."

The "area" in which the president supposedly "has pretty much absolute power," though is in his decision to fire U.S. Attorneys, not in blocking Congressional inquiries into the decision-making process behind those firings.

But the issues of law themselves aren't what the White House is interested in. They're interested in running out the clock, which means they may well litigate the claims of privilege and lose, and then turn around and refuse to comply with the subpoenas anyway, purely on "screw you, come and take it from us" grounds.

Unless Congress is willing to avail itself of either of the two more direct remedies available to it -- i.e., inherent contempt or impeachment -- expect a long slog back and forth through the courts, just to get to the point where we're able to directly challenge the assertion of the president that he gets to say what goes. Along this route, it could be months and months before we're even able to define what it is the "administration" actually thinks underlies its "right" to erase a Congressional power heretofore understood to be plenary.

UPDATE: emptywheel makes a critical observation. Since the Constitution gives to Congress the power to "by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments," it casts into grave doubt the president's claim to "absolute power" over the appointment or dismissal of U.S. Attorneys. In fact, Congress just recently rewrote that power twice: once almost by accident in the middle of the night, in the PATRIOT Act (which is how we got here in the first place), and then once again last month, moving the power back to the courts where it used to be.