And So It Begins

The fight between Congress and the White House over testimony from White House aides over the U.S. attorney firings has officially entered its second stage. The first stage, a stalemate punctuated by threats of subpoenas, lasted three months. The second stage is likely to last much longer.

We noted the subpoenas to Karl Rove’s former aide Sara Taylor and former White House counsel Harriet Miers earlier today. You can see the subpoena for Miers here.

Also among the subpoenas issued this morning were subpoenas from the House and Senate judiciary committees to the White House for “all documents in the possession, custody or control of the White House” that relate to the U.S. attorney firings. You can see the two letters to White House counsel Fred Fielding from the committee chairmen today below.

As CNN reports, the subpoenas are likely to lead to a long fight:

Two Democratic congressional sources say they decided not to subpoena Rove because they are building their case by talking to and gathering information from lower level witnesses and officials, before they get to the more senior, more important witnesses.

“We want to build up and get documents to have basis to ask questions of Rove,” one of the sources said. “It’s the way you do it in any investigation.”

Having said that, the source said the reality is that this will end up in a constitutional showdown and they will never get a chance to talk to any of the White House witnesses.

The documents aren’t likely to be any easier to obtain. In both of their letters to White House counsel Fred Fielding today (see below), the chairmen excoriate the White House for stonewalling their investigations for three months. Fiedling has not wavered from his initial offer of interviews with Karl Rove and other aides only in private with no oath or transcript, an offer that also included an offer to turn over external emails — emails between White House staffers and others outside the White House.

Both chairmen remind Fielding of that earlier offer, but Fielding has said before that the White House won’t turn over anything unless it is part of a package deal, which would include Congress agreeing to the closed door, no transcript interviews — something the chairmen refuse to do.

Update: Here’s Laura’s post from last month on the murky aftermath when a subpoena is contested.

Later Update: From the AP:

Technically, if the showdown between the White House and Congress is not resolved, the matter could end up with House and Senate contempt citations and a session in federal court.

Congressional officials knowledgeable about the probe painted a dark picture of what the Democratic-led committees might do if the White House refuses to comply.

One option, these officials said, are votes in committee and on the House and Senate floors on contempt citations against any subjects of the subpoenas who don’t comply. Another, according to one aide, is a subpoena for White House Counsel Fred Fielding, compelling him to testify publicly about the Bush administration’s reasons if the subpoenas are ignored. The officials spoke on condition of anonymity because the White House, Miers and Taylor had not yet responded to the subpoenas.

The full text of the letter from Senate Judiciary Chairman Patrick Leahy:

June 13, 2007

Fred Fielding, Esq.
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. Fielding:

I have sent you a half dozen letters in the past three months seeking voluntary cooperation from the White House with the Judiciary Committee’s investigation into the mass firings and replacements of U.S. Attorneys and politicization at the Department of Justice. It is now clear from the evidence gathered by the investigating Committees of the Senate and House that White House officials played a significant role in originating, developing, coordinating and implementing the plan and the Justice Department’s response to Congressional inquiries about it. Yet, to date the White House has not produced a single document or allowed even one White House official involved in these matters to be interviews.

In the two and half months since Democratic and Republican members of the Committee rejected your “take it or leave it” offer of off-the-record, backroom interviews as unacceptable, you have not made any effort to work with us on a voluntary business. In response to our efforts to narrow our dispute by gaining access to documents you agreed to produce as part of your offer for off-the-record interviews or to information that forms the basis of the President’s conclusion that no wrongdoing has occurred, you have merely restated your initial, unacceptable offer.

The White House cannot have it both ways — it cannot withhold documents and witnesses and thereby stonewall the investigation and, at the same time, claim that the facts about the White House’s improper influence over federal law enforcement have not been revealed in detail. 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. Because the White House has continued its refusal to provide the requested information to the Senate Judiciary Committee on a voluntary basis, I am issuing subpoenas.

Enclosed please find a subpoena for all documents in the possession, custody or control of the White House related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing of United States Attorneys. The documents compelled by the subpoena include documents related to the Administration’s evaluation of and decision to dismiss former U.S. Attorneys David Iglesias, H.E. “Bud” Cummins, John McKay, Carol Lam, Daniel Bogden, Paul Charlton, Kevin Ryan, Margaret Chiara, Todd Graves, or any other U.S. Attorney dismissed or considered for dismissal since President Bush’s re-election, the implementation of the dismissal and replacement of the dismissed U.S. Attorneys, and the selection, discussion and evaluation of possible replacements. Among these documents are documents related to the involvement of Karl Rove, Harriet E. Miers, William Kelley, J. Scott Jennings, Sara M. Taylor, or any other current or former White House employees or officials in the firings and replacements as well as documents related to the testimony of Justice Department officials to Congress regarding this matter.

The subpoenaed documents include those related to communications between the White House and the Department or any third parties. These are documents that you previously agreed to produce in conjunction with the unacceptable off-the-record interviews in your March 20, 2007, letter to me, Chairman Conyers, Ranking Member Specter, Ranking Member Smith, and Congresswoman Sanchez of March 20, 2007. The subpoena also includes documents related to the “reviews by White House staff” that led the President to publicly conclude as of March 20, 2007, that there was no wrongdoing in the mass firings and replacements of U.S. Attorneys, including any information that has led the President to discount evidence gathered by the investigating Committees.

I am disappointed that I have to turn to this subpoena in order to obtain information needed by the Committee to learn the truth about these firings and the erosion of independence at the Justice Department. However, the evidence that White House officials were deeply involved leaves me know choice in light of your lack of voluntary cooperation. I look forward to your compliance with the Judiciary Committee’s subpoena by the June 28 return date.



And from House Judiciary Chairman John Conyers (D-MI):

June 13, 2007

Mr. Fred F. Fielding, Esq.
Office of Counsel to the President
Counsel to the President
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Dear Mr. Fielding:

Enclosed is a subpoena, issued pursuant to authority granted by the House Judiciary Subcommittee on Commercial and Administrative Law on March 21, 2007, for documents and electronic information to be produced by June 28 in connection with the Committee’s investigation into the circumstances surrounding the termination of at least nine U.S. Attorneys in 2006 and related matters, including possible violations of federal law. This includes the documents concerning communications between the White House and others, which you have already indicated you would be willing to make available, though only as part of an unacceptable “all or nothing” offer.

We issue this subpoena with extreme reluctance, and only after making repeated attempts, as reflected in letters of March 9, March 22, March 28, and May 21, to secure voluntary cooperation from the White House in this matter. In response to a series of attempts to secure such cooperation, however, and a clear warning that we would have no choice but to utilize compulsory process if voluntary cooperation was not forthcoming, you have simply repeated the same unacceptable “take it or leave it” offer you made several months ago. Our Committee has made abundantly clear that we appreciate and respect the institutional prerogatives of the White House and that we remain ready and willing to resolve the issues on a cooperative basis. Unfortunately, we have not seen any indication of such willingness from the White House.

As recited in detail in previous letters, and as demonstrated again by documents produced just yesterday by the Justice Department, there can be no doubt that White House officials played a central role in originating, supervising, approving, and dealing with the aftermath of the plan to replace at least nine U.S. Attorneys since President Bush’s re-election, a role that remains largely unexplored and inadequately understood. Many of these facts are recounted in previous letters from Senator Leahy and from me, on May 16 and 21, respectively.

To cite just a few examples, e-mails provided by the Department of Justice show that Karl Rove and Harriet Miers were involved from the very beginning in plans to remove U.S. Attorneys after President Bush’s re-election, and that the Department official who compiled the lists of U.S. Attorneys to be fired, Kyle Sampson, was in frequent contact with White House officials on the subject. Yet after extensive review of Department documents and on-the-record interviews with a variety of senior current and former Department officials, no one at the Department seems to know who suggested putting most of the U.S. Attorneys on the list to be fired. One such U.S. Attorney, David Iglesias, appears to have been put on the firing list only after Karl Rove relayed complaints about Mr. Iglesias to the White House Counsel’s office and the Department, and only after Mr. Rove was specifically enlisted by several prominent New Mexico Republicans in their effort to have Mr. Iglesias fired. E-mails demonstrate that shortly before the implementation of the firing plan, final circulation to “Karl’s shop” was considered a “pre-execution necessity.”

The precise role of White House officials, however, has been kept a mystery. After an initial round of false statements to Congress on that subject – including written misstatements that the Department was forced to correct, and false testimony that remains uncorrected to this day – Justice Department witnesses have been unable or unwilling to shed any meaningful light on the basic facts regarding who at the White House played what role in selecting these U.S. Attorneys for replacement and why. Also troubling in this regard is an incident Monica Goodling described to the House Judiciary Committee, in which the Deputy Attorney General apparently sent her away from a Senate meeting saying that her presence might prompt Senators to ask questions about the role of the White House in the U.S. Attorney firings and replacements. Taken together, these facts raise grave questions about the role of the White House and its political supporters in the U.S. Attorney firings, and about the Administration’s extensive efforts to minimize or conceal that role. Only fair access to White House information will allow these crucial questions to be answered.

In view of the compelling need for relevant information, your “all or nothing” proposal remains completely unacceptable, as we have previously stated. Conducting interviews without a transcript in a matter of this complexity and scope is likely to lead to unnecessary confusion and factual disputes down the road. It is even more problematic to try to limit the scope of document production and interviews to communications between the White House and outside parties. Communications among the White House staff involved in the U.S. Attorney replacement plan are obviously of paramount importance to any understanding of how and why these U.S. Attorneys were selected to be fired. If there were an email from Karl Rove to Harriet Miers, for example, discussing a particular U.S. Attorney and suggesting that she call Kyle Sampson and add that U.S. Attorney to the replacement list, that would be a critical piece of evidence in this investigation. Moreover, as testimony by former White House officials and others at a hearing before our Subcommittee on Commercial and Administrative Law on March 29 made clear, there is ample precedent for sworn testimony by current and former White House officials and more complete production of documents in response to congressional inquiries like this one.

Our request for information arises in the midst of growing national concern about the politicization of the U.S. Attorney ranks, and the Department of Justice more broadly. The Attorney General’s Chief of Staff, and his Senior Counsel and White House Liaison, have both resigned as a result of their roles in this matter. The Department’s number-two official has also recently announced his resignation. Across the country, U.S. Attorneys find their investigative and prosecutorial judgments subject to unprecedented scrutiny and second-guessing, and the Department’s ability to manage its U.S. Attorney corps has been severely undermined. The need to truly get to the bottom of this controversy, in which Administration officials have previously said they share our interest, is critical to our nation’s justice system.

We hope that the White House will cooperate fully with our efforts to achieve this crucial objective, and we look forward to your production of the documents requested by the return date. Also enclosed for your information is a courtesy copy of a subpoena to former White House Counsel Harriet E. Miers. Please address any questions to the Judiciary Committee office at 2138 Rayburn House Office Building, Washington, D.C. 20515 (tel: 202- 225-3951; fax: 202- 225-7680).


John Conyers, Jr.

cc: The Honorable Lamar S. Smith
Ms. Harriet E. Miers, Esq.

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