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WASHINGTON - President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.
Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor in a fight that centers on Attorney General Alberto Gonzales' stewardship of the Justice Department.
In reaction, Senate Judiciary Chairman Patrick Leahy accused the administration of shifting "into Nixonian stonewalling" and revealing "disdain for our system of checks and balances."
"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to Leahy and the chairman of the House Judiciary Committee. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."
Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.
"Increasingly, the president and vice president feel they are above the law," said Leahy, D-Vt., after getting the news from Fielding in an early-morning phone call. "In America no one is above law."
In his letter, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts. Democrats Patrick Leahy of Vermont and John Conyers of Michigan, the chairs of the Senate and House Judiciary Committees, have rejected that offer.
Bedrock presidential prerogative
On the other hand, Fielding said Bush "was not willing to provide your committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings.
"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch," Fielding said.
"The doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications," Fielding said.
"Further, it remains unclear precisely how and why your committees are unable to fulfill your legislative and oversight interests without the unfettered requests you have made in your subpoenas," Fielding said. "Put differently, there is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue."
It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December, 2001, to rebuff Congress' demands for Clinton administration documents.
Tensions between the administration and the Democratic-run Congress have been building for months as the House and Senate Judiciary panels have sought to probe the firings of eight federal prosecutors and the administration's program of warrantless eavesdropping. The investigations are part of the Democrats' efforts to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks.
Democrats say the firings of the prosecutors over the winter was an example of improper political influence. The White House says U.S. attorneys are political appointees who can be hired and fired for almost any reason.
Democrats and even some key Republicans have said that Gonzales should resign over the U.S. attorney dismissals, but he has steadfastly held his ground and Bush has backed him.
Just Wednesday, the Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office, demanding documents pertaining to terrorism-era warrant-free eavesdropping.
Separately, that panel also is summoning Gonzales to discuss the program and an array of other matters -- including the prosecutor firings -- that have cost a half-dozen top Justice Department officials their jobs.
The Judiciary panels also subpoenaed the National Security Council. Leahy added that, like House Judiciary Committee Chairman John Conyers, D-Mich., he would consider pursuing contempt citations against those who refuse.
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