your connection to The Boston Globe

Panel starts contempt action against Miers

Compromise seen as unlikely

A chair reserved for former White House counsel Harriet Miers sat vacant at a House Judiciary Committee hearing. A chair reserved for former White House counsel Harriet Miers sat vacant at a House Judiciary Committee hearing. (REUTERS)

WASHINGTON -- A court battle over President Bush's broad but largely untested claims of executive privilege grew more likely yesterday when a House panel took the first step toward bringing contempt charges against former White House counsel Harriet Miers.

Miers had been subpoenaed to appear before a House Judiciary subcommittee to testify about her role in last year's firings of nine US attorneys, but declined to attend after Bush's White House counsel instructed her not to appear. The snub provoked a 7-to-5 vote by the House panel contesting the Bush administration's claim of executive privilege.

Tough words from both sides raised the possibility that the present clash might not be resolved in a fashion similar to other executive privilege disputes, through last-minute compromise.

White House counsel Fred Fielding has refused to accommodate any additional demands for records or testimony from administration officials about the decision to replace the prosecutors last year and told Miers the president did not want her to testify before the committee. The decisions, he said in a letter to the committees, rest "upon a bedrock presidential prerogative" that confidentiality among those who advise the president is imperative for the president to "perform his constitutional duties." That extends to all who advise the president, he said.

Legal analysts and those who have worked in previous administrations say the claims put forward by the Bush administration may not be broader than those asserted by other presidents. But they said the administration's position rests largely on a limited number of court decisions and on assertions made by previous administrations never fully tested in the courts.

"They [Bush officials] could argue that their claims are no different from ones that President Clinton made, but there are also those who would argue that Clinton took the principle of executive privilege too far," said Mark Rozell, a George Mason University professor who has written a book on the subject.

University of Chicago law professor and constitutional specialist Cass Sunstein described the doctrine of executive privilege as a "constitutional wilderness," noting a Supreme Court decision confirming the doctrine also said it could be trumped by "weighty and legitimate competing interests."

Since then, the Court of Appeals for the D.C. Circuit has provided more guidance, Sunstein said, extending the privilege beyond the president and vice president to the White House generally, and making clear that Congress cannot overcome the privilege just with generalized concerns about the White House's actions.

Fielding's letter to the House and Senate committees investigating the firings cite a memo sent to him by Solicitor General Paul Clement. "I do not believe that the committees have shown a 'demonstrably critical' need for internal White House communications on this matter," Clement wrote.

Clement said that the administration has provided Congress with thousands of pages of documents and testimony from other administration officials. He also said it was "not at all clear" lawmakers had the right to investigative the president's hiring or firing of US attorneys and said that executive privilege in the matter extended widely. "That the communications involve individuals outside the executive branch does not undermine the president's confidentiality interests," Clement wrote. "The communications at issue occurred with the understanding that they would be held in confidence."

Lee Casey, a lawyer who worked at the Justice Department in the Reagan administration, said, "I don't think the claim here is broader than what has been made before." Sunstein said Clement's memo was a "highly competent, but not an objective, analysis" that relied greatly on holdings of previous administrations rather than judicial precedent. But most legal scholars have emphasized the murkiness of this area of the law. That is "because usually they work it out rather than deciding it in the courts," said Dawn Johnsen, who worked in the department's Office of Legal Counsel in the Clinton administration.