- The Washington Times - Thursday, March 22, 2007

Senate Democrats yesterday authorized — but did not issue — subpoenas for top White House officials to testify about the firings of eight federal prosecutors last year.

However, the face-off between Congress and the White House most likely will end in a negotiated deal with no subpoenas and no court battle, legal scholars say. And last night, a key liberal Republican senator offered the Bush administration a new compromise.

The Senate Judiciary Committee authorized, by a voice vote, subpoenas for presidential adviser Karl Rove, former White House counsel Harriet Miers and their aides. A House Judiciary subcommittee did the same on Wednesday. Members of Congress have demanded a chance to ask the White House officials whether the prosecutors were fired for improper reasons.

If Democrats issue the subpoenas, they likely will lose their only chance to interview Mr. Rove and Miss Miers. The White House says its offer to allow Congress limited access to Mr. Rove and the others is “off the table” if the subpoenas are issued.

“It’s a high-stakes game of chicken,” said Raymond Shepherd, a former chief counsel on the Senate Homeland Security and Governmental Affairs permanent investigations subcommittee.

“I don’t know who will blink, but ultimately they will come to an accommodation, as they should,” said Mark Agrast, a former legal counsel to Democrats in Congress and now a senior fellow at the Center for American Progress, a liberal think tank.

The White House has offered Congress private interviews with Mr. Rove and Miss Miers, without a transcript and not under oath.

Democrats say that is not enough. “What we’re told we can get is nothing, nothing, nothing,” Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said yesterday.

Sen. Arlen Specter, Pennsylvania Republican, suggested to White House counsel Fred Fielding yesterday that selected lawmakers could question Mr. Rove and other administration officials in public, but not under oath.

“Mr. Fielding did not accept or reject it,” White House spokeswoman Dana Perino told reporters.

It is not clear if the subpoena threat gives Democrats significant leverage because there is no proof of criminal activity, said Douglas Kmiec, who was a Justice Department attorney for Presidents Reagan and George Bush.

“I am not sure the Democratic members of the House and Senate judiciary committees appreciate the tentative legal ground upon which they stand,” Mr. Kmiec said. “Congress thinks that somehow there is an easy legal judicial determination that is in their future. It is neither easy and is also not likely to be resolved in their favor.”

White House spokesman Tony Snow expressed confidence that the Bush administration has the upper hand, that a White House over which the Congress has no constitutional authority to engage in oversight is offering a full accounting.

President Bush has vowed to fight any subpoenas in court.

A legal battle is unattractive to both sides, but analysts said the law likely would side with the White House.

Executive privilege, which normally protects the president’s internal communications from outside examination, could be superseded in court only by “a pretty significant event — a criminal conspiracy,” said John Fortier, a legal analyst with the American Enterprise Institute, a conservative think tank.

“In this case I don’t think it rises to the level of that,” Mr. Fortier said.

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