If the Senate and House judiciary committees issue subpoenas for Karl Rove and other White House aides to testify to their roles in the firing of the eight U.S. attorneys, President Bush should defy the subpoenas. He should accept the contempt citations and fight it all the way to the Supreme Court.
Indeed, he has a duty to do so. For Bush is today the custodian of an office that is the subject of assault by a partisan and hostile Congress.
This is not about the incompetence of the Justice Department of Attorney General Alberto Gonzales or about any White House role in the firing of the eight — whom President Bush had every right to fire.
This is about preserving and protecting the integrity of the institution of the presidency. It is about the right of America’s head of state and head of government to receive the candid counsel of his most trusted advisers.
If White House assistants as close to a president as Karl Rove is to George W. Bush can be ordered before congressional partisans, to be interrogated by congressional committees on what he may have told the president on controversial matters, the presidency itself will be damaged and weakened.
What is the matter with so many journalists that they cannot see or understand the principle at stake? Is their contempt for Bush so great they cannot see the need for executive privilege? Indeed, the hypocrisy on the part of some in the press is so manifest as to make them look absurdly partisan.
We just passed through a criminal investigation by U.S. Attorney Patrick Fitzgerald of the alleged outing of a CIA agent, an investigation the press demanded. Yet journalists were outraged that Judith Miller of The New York Times and Matt Cooper of Time were subpoenaed and forced to testify to a U.S. grand jury in that criminal investigation. To defend reporter’s privilege, Miller spent months in jail, rather than testify to what a single White House aide told her.
Can journalists credibly argue for an absolute shield law that protects their right never to have to reveal — even before a federal grand jury that is investigating potential crimes against national security — what Karl Rove told them, but President Bush has no right at all to protect what Rove told him from a partisan congressional committee?
Congress, too, is being manifestly hypocritical.
When $90,000 was discovered in the freezer of Rep. William Jefferson, the Justice Department went to a federal judge for a subpoena, so the FBI could enter Jefferson’s office, where agents removed files related to a corruption investigation. Yet members of Congress were outraged at this executive intrusion in their sacrosanct domain.
No matter that Jefferson was under criminal investigation, no matter that the subpoena was validly issued by a U.S. judge, Capitol Hill was said to be a sanctuary into which no law enforcement agent of the executive branch had a right to intrude.
Journalists make the point that Nixon aides, among them this writer, testified under oath in televised hearings before the Watergate Committee, that President Nixon was ordered by the Supreme Court to turn over tapes of his most confidential Oval Office conversations.
But those tapes were ordered turned over to an independent special prosecutor, whose office had been set up to investigate the White House and prosecute former White House aides. The executive branch was investigating the executive branch.
As for the Senate Watergate Committee, it was a special committee with which President Nixon, after the White House aides involved in the scandal had been removed, had agreed to cooperate. The same was true of President Reagan in the Iran-Contra affair.
In this matter of the eight U.S. attorneys, what do we know? That they were fired by the president at whose pleasure they served. That there is no hard evidence any was fired to abort a criminal investigation. That some were incompetent. That others, like Carol Lam of San Diego, had their own agenda and were not dealing resolutely, as Justice was demanding, with the illegal immigration scandal.
Congress has many powers, among them the right to command the presence and public testimony of every executive branch officer in the Cabinet departments. But Congress has no right, in its oversight function, to command the testimony of a president’s closest aides as to what they told the president in confidence, any more than it has a right to the testimony of Supreme Court clerks as to what they told the chief justice.
If Congress presses ahead with these subpoenas, the president should use every weapon in his arsenal to repel this act of aggression by a rogue Congress against the Office of the President of the United States.