Subpoena Showdown: Does No Mean No?

March 22, 2007 — -- A second congressional committee voted Thursday to authorize subpoenas for White House aides, including deputy chief of staff Karl Rove and legal counsel and one-time Supreme Court nominee Harriet Miers in the growing controversy surrounding the firing of eight U.S. attorneys late last year.

The move calls the White House on its promise that there will be no negotiations when it comes to executive privilege and the power of Congress to demand answers from high-ranking White House aides.

Defiant Gonzales Pledges Fight Despite Republican Support for Subpoenas

Just a day after President Bush publicly backed his embattled attorney general, Alberto Gonzales told a crowd in St. Louis, Mo., bluntly, "I will not resign," despite bipartisan rancor over the firings and support for the subpoenas.

While the vote by the Senate Judiciary Committee to authorize subpoena power was never in doubt, the the two hours of debate that preceded the vote showcased the fact that even conservative Republicans, normally supportive of the White House, are uncomfortable with the president's condition that any testimony by his advisers would have to be behind closed doors, not under oath, and conducted without an official transcript.

Republicans on the committee who supported authorizing subpoena power, with the exception of Senator Chuck Grassley, R-Iowa, shied away from an on-the-record vote to empower the Democratic-led committee to subpoena Rove and others.

Most Republicans argued that it would be better to negotiate with the White House before engaging the White House in a protacted court battle but agreed with the majority Democrats that any interview of White House staffers should be in public and under oath (or at least transcribed).

Democrats pointed out that Bush, either as a tactic or a matter or truth, said there would be no negotiaton.

No Means No?

Republicans in the Senate argued, in various ways, that the president's offer may not be as non-negotiable as Bush has made it seem.

Sen. Tom Coburn, R-Okla., reasoned, "A no is not always a no. My wife said no the first four times I asked her out on a date."

Committee Chairman Patrick Leahy, D-Vt., and ranking Sen. Arlen Specter, R-Pa., sitting next to each other at the hearing, were interruptive and animated as they discussed whether its worth offering a counter-proposal to a White House that has said its first offer is the final offer without a fight in court.

"Will this investigation be best served by finding out what we can now or by litigation that takes two years?" Specter asked. "If we don't like what we get, we can always issue a subpoena."

"What we're told we can get is nothing, nothing, nothing!" exclaimed Leahy. "We're told we can get a closed door, no oath, no transcript. That to me is nothing."

Later, after Specter outlined his idea for a possible counter-offer to the White House -- an open, but controlled hearing with a transcript and subject to prosecution for making false statements -- the Pennsylvania Republican replied, "That would accomplish what we have mind...if that doesn't do the job, we'll go forward with a subpoena."

But Leahy interrupted Specter, interjecting, "Why waste our time when they've already said this is what the Senate must do? All the things you've suggested might make sense, but they've already been rejected."

"The press secretary getting tough doesn't mean he can't get softened up," Specter said.

"You mean the president would intentionally mislead us?" rejoined Leahy.

"The president has given us a take it or leave it position," Leahy said. "I take the president at his word. I don't know how you explain it to the thousands of Americans every day who stand up and raise their right hand and say 'I will tell the truth, the whole truth and nothing but the truth,' and do it proudly -- I don't know how you tell them there is a small group of people who are excluded."

Constitutional Crisis or Separation of Powers?

Some Republicans argued issuing subpoenas could set a constitutional crisis in motion.

"Not only is the authorization of the subpoena now unnecessary but I think it might ultimately prove counterproductive," said Senator Jon Kyl, R-Ariz. "We need to think about the damage to the relationship between the [White House and Congress]."

In past instances in which Congress has compelled White House aides to testify, both in the Nixon and Clinton eras, there was evidence that some law had been broken. It is unclear if that evidence exists in the case of the fired U.S. attorneys.

All sides agree that the president has the power to fire his U.S. attorneys at will but six of the eight U.S. attorneys fired by Attorney General Gonzales in December were involved in investigations into Republicans or Democrats.

Explanations of the firings by Justice Department officials, including Gonzales, have changed since January.

"It is very clear that we have been misled from the very beginning," said Sen. Dianne Feinstein, D-Calif. "It's one thing to manipulate, it's another thing to manage. And there is a difference between the two."

When Leahy gavelled the hearing to a close, protesters all clad in pink -- women involved with the anti-war group Code-Pink have become ubiquitous at hearings on Capitol Hill -- launched into a rendition of "You Are My Sunshine," apparently because, as the saying about open government goes, sunshine is the best disinfectant for public corruption.

The House Judiciary committee authorized the issuance of subpoenas Wednesday. It is unclear at this point when either or both committees will actually call the aides to testify or if they will win a court challenge of their right to do so.