Fred Fielding's bad day

White House counsel Fred Fielding was on Capitol Hill today meeting with House and Senate committee staff members. They discussed requests for testimony from White House adviser Karl Rove and former White House counsel Harriet Miers.

The topic of the day was the firing of U.S. attorneys and the extent to which White House political calculations may have influenced those dismissals. While there is no question that the president has the power to fire federal prosecutors with or without cause, it would be a high crime if the prosecutors were fired because they stood up to improper political pressure to prosecute Democrats and let Republicans off the hook.

We don't know if that's the case, by the way. In New Mexico, for instance, where U.S. Attorney David Iglesias was criticized for failing to bring charges against people who were allegedly engaging in vote fraud, there may actually have been vote fraud, and the pressure to bring charges over it might have been perfectly reasonable.

But that's another subject.

The more interesting question is whether the White House will try to claim executive privilege to prevent Karl Rove, Harriet Miers and others from testifying under oath on Capitol Hill.

It's more a political question than a legal one. In fact, executive privilege is fiction. There is no presidential privilege against a subpoena from the U.S. Congress, which is explicitly empowered by the U.S. Constitution to impeach the president, the vice president, and all civil officers of the United States. The power to impeach necessarily includes the power to investigate. It is fantasy to believe that the targets of a potential impeachment have some unwritten constitutional authority to impede a congressional investigation by refusing to testify or turn over documents.

President Bush has demonstrated in the past that he understands this perfectly well (See "Senate Republicans fire the big gun.") In any negotiation with Congress over documents and sworn testimony, his only leverage is his ability to convince the House and Senate committee chairmen to back down. When the Republicans held the majorities, he could argue that opening this or that can of worms was bad for the country or would reveal secrets that would help the enemy. He could argue, though not publicly, that certain campaign fund-raising trips might be scheduled for GOP lawmakers who saw the wisdom of his argument, or canceled for those who didn't.

But now that Democrats hold the majorities and the subpoena power, the argument has to made differently. Now the president has to rely on the threat that he will demonize the investigators as vengeful political hacks who are spending their time hounding him when they should be working on... well, you know, you've heard this before.

And if the Democrats start issuing subpoenas, you're going to hear it again.

The truth is, there is nothing the president can do to stop the Democrats from grilling his top aides under oath. If the committee chairmen make any concessions to Fred Fielding and agree to limit their subpoenas, it will be because they have judged that it is not in their interest to impeach the president. Investigations, once opened, can be very difficult to close.


Copyright 2007

.