The REAL Slow Bleed?

Subpoena Assault
Congress's real goal is crippling the Bush Presidency.

Thursday, March 22, 2007 12:01 a.m. EDT

On Tuesday, White House Counsel Fred Fielding offered Congress a chance to question several top Presidential aides about the firing of eight U.S. attorneys--so long as the questioning was done privately, without a transcript, and the aides weren't under oath. Having thus been handed an olive branch, a House Judiciary Subcommittee promptly approved subpoenas yesterday for Karl Rove, Harriet Miers and other top current or former Presidential aides to testify before Congress, publicly and under oath.

The Beltway is now abuzz with talk of a "Constitutional crisis." We'd put it another way: What's at stake here is whether George W. Bush is going to let Congress roll up his Presidency two years early. Democrats are trying to use the manufactured outrage over the entirely legal sacking of Presidential appointees to insert themselves into private White House deliberations. Mr. Bush needs to draw a line somewhere, and fast, or Democrats will keep driving until the White House staff is all but working for Democratic Senate campaign chief Chuck Schumer.

These columns have long supported the principle of "executive privilege," though we realize it is not a blanket prerogative: Both the Burger Supreme Court in United States v. Nixon and the Rehnquist Court in Clinton v. Jones upheld the principle that a President cannot use the claims of his office to protect himself from criminal or civil legal claims.

But there's little doubt that this or any other President has the right--we'd say the obligation--to protect the confidentiality of internal White House discussions, especially over Presidential appointments. If Congress can solicit any email concerning advice to the President, or haul any White House official before Congress, then executive branch deliberations will soon be an oxymoron.

Mr. Fielding may already have been too generous in allowing Congress to question advisers, considering the core executive powers at issue. But let's assume that as the new White House counsel he was attempting to avoid a Constitutional showdown and show respect for Congress's power to conduct oversight. This week the Justice Department also turned over some 3,000 emails on the matter, and any number of Justice officials, including the Attorney General, have testified or soon will under oath. If this is a "cover-up," it is the most porous in history.

All the more so because the evidence so far suggests that this is a scandal without anything scandalous. Justice Department officials have certainly been the gang that couldn't get its story straight, and we can understand Congress's frustration with the evolving explanations. But the biggest blunder was for Justice to deny that the eight attorneys were dismissed for "political" reasons.

U.S. attorneys are "political appointees," and so by definition can be replaced for political reasons. If San Diego's Carol Lam was out of step with the Administration's priorities on immigration enforcement, or New Mexico's David Iglesias was judged insufficiently aggressive on voter fraud, then it was entirely appropriate for the President to replace them with officials more in line with his views. What's the alternative? Presumably, Mr. Bush's Congressional critics would have him--and his successors, Republican and Democratic--preside over political appointees who are unaccountable to anyone except Congress.

What would be genuine grounds for outrage is if a U.S. attorney were dismissed to interfere with a specific prosecution, or to protect some crony. This was the root of our objection, in 1993, to Janet Reno's dismissal (at Webster Hubbell's instigation) of all 93 U.S. attorneys in his Administration's earliest days. But there is no such evidence involving any of the eight Bush attorneys.

As for Congress's subpoenas, they are being issued largely for the political melodrama they create. Even if Congress serves the subpoenas, Democrats know that they can't be enforced without a long legal fight that would extend toward the end of the Bush Presidency. The point of this stunt isn't to learn what Karl Rove knows, or else Congress would accept the White House offer to interview him in private. The exercise is all about creating an aura of "cover-up" and "illegality," never mind the lack of any evidence.

Whether Attorney General Albert Gonzales or Deputy Paul McNulty now lose their jobs is a decision Mr. Bush will have to make. But no one should be under any illusions that their political sacrifice at the current moment would appease Democrats. Their real target is Karl Rove, and ultimately the crippling of the Bush Presidency. Whatever benefit Mr. Bush would gain by giving GOP Members a ritual sacrifice would be offset by the costs of putting even more Administration blood in the water.