Subpoenas Have Been issued, to Taylor and Miers

Why Were They Fired?
By Dan Froomkin
Special to washingtonpost.com
Thursday, June 14, 2007; 1:20 PM

President Bush last month complained that the congressional probes into the firings of nine U.S. attorneys were being "drug out . . . for political reasons." White House spokesman Tony Snow yesterday dismissed the issuance of congressional subpoenas to two former White House aides as an attempt to "create some media drama."

But if anyone is to blame for the dragging out of the probes and the drama, it's Bush himself. He and his aides have consistently refused to tell the American people why those federal prosecutors were fired.

Democrats have reason to suspect that at least some of the firings were set in motion by Karl Rove's White House political staff and were intended to affect politically charged cases in ways that would benefit the Republican Party.

Those are serious allegations. But the official White House response has been a non-denial. That U.S. attorneys "serve at the pleasure of the president" is immaterial. And the absence thus far of definitive evidence of wrongdoing at the White House level may be due more to effective stonewalling than to any lack of actual wrongdoing.

There's certainly a growing body of evidence to suggest that Attorney General Alberto Gonzales has essentially turned over control of the traditionally independent Justice Department to political operatives.

If Bush wants this media drama to go away -- and if there is, in fact, an innocent explanation for the firings -- then it's in his best interest to come clean, in public, and sooner rather than later.

Why wait for a congressional hearing?

But that's not what's happening. Instead, the White House's carefully parsed and entirely unforthcoming statements on this matter are reminiscent of the response four years ago to allegations that White House aides had leaked CIA agent Valerie Plame's identity to reporters.
Back then, Bush could well have demanded an answer from his staffers and then shared it with the American people. He chose not to. Whether he chose not to because he knew that two of his top aides were involved in the leaking is still, to this day, not entirely clear. By stonewalling, Bush was able to postpone that revelation until after getting reelected.

Had the Democrats been in a position to issue subpoenas, things might have turned out differently.

And today, with the White House simply refusing to respond forthrightly to some very troubling charges, it is entirely reasonable for Congress -- and the press -- to ask, over and over again:

Why were they fired?

Today's Coverage
The House and Senate Judiciary chairmen yesterday issued subpoenas for former White House counsel Harriet Miers and former White House political director Sara M. Taylor.
Dan Eggen and Paul Kane write in The Washington Post: "The decision by two congressional panels to issue subpoenas to the White House yesterday escalates a constitutional showdown over the Justice Department's firing of nine U.S. attorneys that could end up being decided by the federal courts. . . .

"The White House gave no indication that it intends to comply with the demands. 'It's clear that they're trying to create some media drama,' said spokesman Tony Snow, referring to Democratic lawmakers.

"By targeting two former administration officials, Sen. Patrick J. Leahy (D-Vt.) and Rep. John Conyers Jr. (D-Mich.) are hoping that Miers and Taylor might decide to reach accords with the House and Senate committees, regardless of the administration's interests, according to congressional aides. . . .

"Sen. Charles E. Schumer (D-N.Y.) said Democrats are keenly interested in obtaining testimony from presidential adviser Karl Rove but must first question other White House officials. A succession of Justice Department officials have denied responsibility for placing prosecutors' names on the firing lists. . . .

"'We still haven't found out who actually concocted this scheme,' Schumer said. . . .

"One constitutional-law expert said yesterday that the White House is in a difficult legal position, with little ability to refuse the subpoenas. 'They're in the unsustainable position of refusing to explain the increasing evidence of a coverup,' said Charles Tiefer of the University of Baltimore Law School.

"Tiefer, a former deputy House counsel, said the White House does not have standing to try to quash the subpoenas preemptively. That leaves White House counsel Fred F. Fielding with the choice of a negotiated settlement or a showdown in federal court.

"If the White House refuses the subpoenas, Leahy and Conyers could move to hold the White House in contempt, then forward those citations to the full House and Senate for approval. The contempt citations would then be sent to the U.S. attorney for the District of Columbia, Jeffrey A. Taylor, who is required to empanel a grand jury to consider indictments. Taylor may have to recuse himself because of his involvement in events as a U.S. attorney."

Richard B. Schmitt writes in the Los Angeles Times: "Except in cases involving national security or military secrets, the executive branch enjoys no absolute privilege to withhold documents from Congress. In most disputes, courts balance the interests of the administration to keep the documents private, against the public or congressional interests in learning about the material.
"Some legal experts said they believe that Congress would prevail in any court fight over the U.S. attorney documents.

"'I think if you were to stand back from this and say, "Who has the better argument?", the answer is going to be Congress,' said Peter M. Shane, an expert at the Ohio State University law school on the separation of powers.

"Shane said that conditions the White House has insisted on before making officials available for questioning appear unreasonable. The current White House counsel, Fred F. Fielding, has agreed to permit officials to answer questions from members of Congress but only if the testimony is private, unsworn and there is no transcript.

"'Saying that the investigation can proceed but not with an oath or transcript, I think, is a ridiculous offer,' Shane said. 'If there cannot be a firm record of what is actually said, then it is quite literally a pointless investigative technique. If I were advising the majority counsel on either side, I cannot imagine accepting that offer. It is worse than nothing.'"

David Johnston writes in the New York Times: "Congressional investigators have largely completed their interviews of Justice Department officials and assembled thousands of pages of departmental documents. Yet they still cannot definitively answer such basic questions as who initiated the effort to oust the nine prosecutors, how the nine were selected and whether their dismissals were motivated by a desire to push a political agenda, like accelerating investigations of Democrats or protecting Republican elected officials from scrutiny, as some members of Congress have asserted.

"The inquiry has at least made clear that Ms. Miers and Ms. Taylor, among others at the White House, helped orchestrate the effort, despite an early statement by the Bush administration denying such a role.

"Ms. Miers, starting as early as March 2005, was exchanging e-mail with D. Kyle Sampson, the attorney general's former chief of staff, discussing prosecutors who could be removed. . . .

"Ms. Taylor, the e-mail has shown, played an important role in the appointment of J. Timothy Griffin, a former aide to Karl Rove, President Bush's chief political adviser, as the interim United States attorney in Arkansas. He replaced H. E. Cummins III, one of the prosecutors removed."

In a joint press release from the two chairmen, Leahy said: "The White House cannot have it both ways -- it cannot stonewall congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred. The involvement of the White House's political operation in this project, including former Political Director Sara Taylor and her boss Karl Rove, has been confirmed by information gathered by congressional committees. Some at the White House may hope to thwart our constitutional oversight efforts by locking the doors and closing the curtains, but we will keep asking until we get to the truth."

Conyers said: "Let me be clear: this subpoena is not a request, it is a demand on behalf of the American people for the White House to make available the documents and individuals we are requesting to help us answer the questions that remain,' said Chairman Conyers. 'The breadcrumbs in this investigation have always led to 1600 Pennsylvania. This investigation will not end until the White House complies with the demands of this subpoena in a timely and reasonable manner so that we may get to the bottom of this."

In a letter to Fielding, Leahy wrote: "The White House's continued stonewalling leads to the obvious conclusion that the White House is hiding the truth because there is something to hide. "

And in a summary of findings thus far, the Democrats reported:

"Mr. Sampson, who has testified that he 'aggregated' the list of U.S. Attorneys to be fired, was in frequent contact with White House officials about multiple versions of proposed lists of possible U.S. Attorneys for dismissal and potential replacements over the course of nearly two years, sending draft lists for review in March 2005, January 2006, April 2006, and several drafts in September 2006 through the firings on December 7, 2006. . . .

"The evidence gathered so far also shows significant White House involvement -- including by Mr. Rove -- in the decision to dismiss David Iglesias as U.S. Attorney for the District of New Mexico. We have learned from the testimony of the Attorney General and Mr. Sampson that Mr. Rove directly complained to the Attorney General about concerns that prosecutors were not aggressively pursuing voter fraud cases in districts in Pennsylvania, Wisconsin, and New Mexico. . . .

"Since the firings of these U.S. Attorneys for political reasons became public, there has been an effort to minimize, and in some instances, cover up, the role of White House officials. According to documents and the testimony of Mr. Sampson, the Attorney General was upset after the February 6, 2007, testimony of Deputy Attorney General Paul McNulty because Mr. McNulty's testimony put the White House involvement in the firings into the public domain. Former Justice Department White House Liaison Monica Goodling recently told the House Judiciary Committee that she was told not to attend a briefing by Deputy Attorney General Paul McNulty on the firings to the Senate Judiciary Committee in February, 2007, because of the concern that her presence might prompt Senators to ask questions about White House involvement."


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