Was Bush Involved in U.S. Attorney Scandal? Depends on Whom You Ask
President Bush still dogged by questions over what he knew and when.
August 19, 2008— -- Was he or wasn't he?
It may be the Bush-era version of "What did he know, and when did he know it?", the famous question that dogged Nixon through the Watergate break-in scandal.
Before the court of public opinion, White House spokespeople have long maintained President Bush had no involvement in the firing of nine U.S. Attorneys, the central decision that mushroomed into one of the biggest scandals in eight years of the Bush administration.
"[T]here is no indication that the President knew about any of the ongoing discussions [about firing U.S. attorneys] over the two years, nor did he see a list or a plan before it was carried out," White House spokeswoman Dana Perino told reporters in March 2007.
In federal court, however, the administration's lawyers have been more ambiguous.
"The record does reflect at this stage that the president was not involved in decisions about who would be asked to resign from the department," Justice Department lawyer Carl Nichols carefully argued before a federal judge in June. But "the record does not reflect that the President had no future involvement" in the scandal, he noted.
Just how much of a role the president played in the firings and its aftermath remains unclear. But in trying to prevent top White House officials from testifying or turning over documents to Congress, the Bush administration "is very consciously trying to walk a very fine tightrope," explained Stephen Vladeck, a law professor at American University in Washington, D.C.
On the one hand, experts say, the White House finds it politically necessary to make clear statements insulating Bush from the scandal. But in court, "If they said [Bush] wasn't involved at all they would undermine their case for executive privilege," Vladeck said.
The resulting argument, he said, is "a lawyer who's trying to be very obtuse."
Still, the administration lawyers' fancy footwork hints that the president's involvement could be broader than widely known. "They are not expressly saying it but it is an implicaton because you can't mislead the court," said Charles Tiefer, former House general counsel now a law professor at the University of Baltimore.
Lawyer Stanley Brand, former counsel to the House of Representatives and one of the capital's leading ethics experts, put it more bluntly. "The White House press people lie, but the lawyers have to tell the truth because they're officers of the court."
The administration is fighting a congressional effort to force former White House counsel Harriet Miers and former chief of staff Joshua Bolten to provide documents and testimony about the firings and their aftermath. The administration argues that the ex-aides should enjoy so-called "executive privilege" by virtue of their service to Bush and be protected from congressional subpoenas.
Judge John Bates from the U.S. District Court for the District of Columbia ruled last month that the two did not have blanket immunity from congressional inquiries, although they could invoke executive privilege in reponse to specific questions or requests.
The administration has appealed the ruling and is urging the judge to stay the subpoenas until a higher court can review the decision. Congress filed papers Friday urging Bates not to stay the rulings.
The White House has acknowledged a minor role for Bush in the affair. Last year, it confirmed that Bush had one conversation with then-Attorney General Alberto Gonzales, prior to the now-infamous purge, about complaints from senators that their home-state U.S. attorneys were not aggressively pursuing perceived voter fraud cases.
In addition, the Albequerque (N.M.) Journal reported in April 2007 that sometime after the 2006 midterm elections, Bush had a phone conversation with Sen. Pete Domenici, R-N.M., about then-New Mexico U.S. attorney David Iglesias. Iglesias was one of the nine prosecutors fired in the scandal. The White House last Friday declined to confirm the story.
During oral arguments in June, Judge Bates made it clear he did not understand the adminisration's position on Bush's involvement in the scandal.
"Let me explore that just a little bit," Judge Bates asked administration lawyer Nichols during oral arguments in June. "[W]hat you're saying is that some of the documents" subpoenaed by Congress "may well be documents that involved advice to the President or even presidential decisions."
"They may well. They may well," Nichols replied.
"But some may not," the judge said.
"That is correct," replied Nichols.
Bates tried to sum up the White House's stance: "If you divide out. . . the issues, into the removal [of the U.S. attorneys] versus who was to be appointed to replace people, versus handling the whole matter, the sort of after-the-removal problems with Congress, then those may have different degrees of presidential involvement."
"I think that's fair, Your Honor," Nichols replied.
Fair, perhaps, but none too clear: in his ruling, Bates noted there was "some ambiguity" in the White House's position.
The White House declined to comment on the president's role in the scandal. "We don't have anything new to add to this exhaustively covered issue at this time," wrote spokesman Scott Stanzel in an email to ABC News.