- The Washington Times - Thursday, March 22, 2007

2:35 a.m.

The high-stakes face-off between Congress and the White House over eight fired U.S. attorneys most likely will end in a negotiated deal, with no subpoenas being issued and no court battle, legal analysts tell The Washington Times.

However, the Senate Judiciary Committee voted this morning to authorize subpoenas for presidential adviser Karl Rove, former White House counsel Harriet Miers and their top aides. A House Judiciary subcommittee yesterday did the same. Congress wants to ask the White House officials about their role in the attorneys’ firings last year.

However, if Democrats issue the subpoenas, that likely would deprive them of their only chance to interview Mr. Rove and Miss Miers because the White House says its offer to allow administration officials to testify is “off the table” if the subpoenas are issued.

“Its a high-stakes game of chicken,” said Raymond Shepherd, a former chief counsel on the Senate’s permanent investigations subcommittee.

The White House has offered private interviews without transcripts and not under oath. Democrats want more than that.

“What were told we can get is nothing, nothing, nothing,” Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said this morning.

It is not clear that the subpoena threat gives Democrats significant leverage unless they have proof of criminal activity, said John Fortier, a legal analyst with the American Enterprise Institute, a conservative think tank.

White House spokesman Tony Snow said this morning that he was confident the Bush administration has the upper hand.

“We did offer a compromise, and the compromise is that a White House over which the Congress has no constitutional authority to engage in oversight is offering full rendering of communications,” Mr. Snow said.

President Bush has promised to fight subpoenas in court. A legal battle is unattractive to both sides, but probably more to Democrats.

The presidents executive privilege, which protects internal communications from outside examination, could only be superseded in court, Mr. Fortier said, by “a pretty significant event - a criminal conspiracy … and the Congress is considering impeachment.”

“In this case, I dont think it rises to [that] level,” he said.

Furthermore, said Mr. Shepherd, now with Venable LLP, both sides likely dont want the issue to go to court because of the immense stakes that would be riding on such a case.

“There has never been a Supreme Court ruling on the question of whether there are any circumstances in which the executive branch can refuse to provide any information sought by Congress on the basis of executive privilege,” he said.

Mr. Shepherd said that when Congress asked President Nixon for his recordings of White House conversations, “Nixon wanted that [executive] privilege to be absolute.”

“The court said there is a constitutional basis for that privilege, but it rejected Nixon’s contention that the privilege is absolute,” he said.

“Neither side wants the Supreme Court to take up the case because the court could resolve the issue one way or another,” Mr. Shepherd said.

Depending on how the Supreme Court ruled on the current conflict, Mr. Shepherd said, Congress would either “have its hands tied or it could investigate anything.”

“It’s Texas Hold ‘Em poker because whoever wins gets all the cash,” he said.

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