If the Senate Judiciary Committee issues a subpoena for Karl Rove to testify to his role in the firing of the eight U.S. attorneys, President Bush should defy the subpoena, accept the contempt citation, and fight it all the way to the Supreme Court.

Then he should deputize Vice President Cheney to deliver the message to his old friend, Chairman Pat Leahy.

Not in memory has there been more of a nothing-burger of a scandal than the sacking of the martyrs of Alberto Gonzales. As my former White House colleague Jim Warner writes, this is a “contrived controversy … since the Supreme Court has ruled that, with limited exceptions, Congress has no voice in the dismissal of federal officers.”

U.S. attorneys serve at the pleasure of the president. Bush can fire them, retain them, or remove some and retain others. The Supreme Court has upheld that right and denied Congress any role in the presidential hiring and firing of political appointees. Writes Warner:

In 1926, the Supreme Court held that the requirement for the Senate approval of a dismissal was unconstitutional. Chief Justice William Howard Taft, writing for the majority, stated that in order for the president to fulfill his constitutional duty, he must be able to discharge federal workers whose performance in office was not in accordance with his desire and that this responsibility could not be shared with Congress.

Why then is Congress mucking around in what is none of Congress’ business? President Bush should tell the Senate Judiciary Committee to butt out. Indeed, he has a duty to do so. For he is today custodian of an office that is the subject of assault by a savagely partisan and hostile Congress.

This is not about the competence of Alberto Gonzales or his coterie at Justice or any White House role in the ouster of the eight. This is about preserving and protecting the integrity of the presidency of the United States. It is about the right of every president to receive the candid counsel of his most trusted advisers.

If White House assistants as close to a president as Karl Rove is to Bush can be ordered before Congress to be interrogated publicly on the inner workings of the White House, or what he may have told the president on controversial issues, the presidency will be irretrievably damaged. Whatever conservatives may think of Bush or Rove, they ought to be as protective of the rights and powers of a president as they are of those of Congress and the Supreme Court.

And what is the matter with so many journalists that they cannot see the principle at stake? Is their contempt for Bush so great they cannot see a need for executive privilege? Indeed, the hypocrisy on the part of many in the press is so manifest as to make them look almost absurdly partisan.

We just passed through a criminal investigation by U.S. Attorney Patrick Fitzgerald of the alleged outing of a CIA covert agent, an investigation the press demanded. Yet journalists howled when Judith Miller of the New York Times and Matt Cooper of Time were forced to testify to a federal grand jury in that criminal investigation. To defend reporter’s privilege, Miller spent months in jail rather than reveal what a single White House aide had told her.

Can journalists credibly argue for an absolute shield law that protects their right never to have to reveal—even to a U.S. grand jury investigating potential crimes against national security—what Karl Rove told them, but President Bush has no right to protect what Rove told him from a partisan congressional committee?

Congress, too, is being massively hypocritical. When $90,000 was discovered in Congressman William Jefferson’s freezer, the Justice Department went before a federal judge for a subpoena for the FBI to enter Jefferson’s office. FBI agents removed files related to a corruption investigation.

Members of Congress were outraged at this executive-branch intrusion in their sacrosanct domain. Former Speakers Newt Gingrich and Tom Foley joined to file amicus briefs on Jefferson’s behalf, asserting an executive-branch violation of the separation of powers. 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 law-enforcement agents of the executive branch had no right to intrude.

Journalists make the point that Nixon aides, this writer among them, had to testify under oath in televised hearings before the Senate Watergate Committee, that Nixon was ordered by the Supreme Court to turn over the tapes of his most confidential Oval Office conversations. But those tapes were ordered to be turned over to an independent prosecutor, whose office had been set up to investigate the White House and prosecute former White House aides. The executive branch was investigating itself. As for the Watergate Committee, it was a special committee with which President Nixon, after White House aides involved in the scandal had been removed, had agreed to co-operate. The same was true of President Reagan in the Iran-Contra affair.

Of the eight U.S. attorneys, what do we know? That they were fired with the approval of 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 and others seemed to have their own agendas or were not dealing as resolutely as Justice was demanding with such matters as illegal immigration.

If the Senate Judiciary Committee feels illegitimate pressure was put on U.S. Attorney David Iglesias by that phone call from Sen. Pete Domenici asking about indictments in a corruption scandal, why have they not called Domenici to testify rather than demanding the appearance of Karl Rove? The answer suggests itself. As Warner wrote, this is a “contrived controversy,” born of “imaginary indignation.”

We also know that Justice Department officials did not tell Congress the same story about why they did what they did. But what exactly is the Senate’s responsibility if there are conflicts in recollection among Justice officials in doing what they had every right to do: fire the eight? These hearings are thus a perjury trap, designed to elicit conflicts of testimony so senators can howl for the appointment of a special prosecutor because someone has lied to them.

Congress has the right to command the public testimony of executive-branch officers in the Cabinet departments. Congress has no more right to command the public testimony of a president’s closest aides than it has to the public testimony of Supreme Court clerks as to what they told the Chief Justice or what the Justices told each other before handing down a decision.

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.   

April 23, 2007 Issue