The White House indicated yesterday that it would cooperate fully with the prosecutor appointed to investigate the U.S. attorney firings, but it showed no signs of backing down from a long-running subpoena battle with a congressional committee probing the matter.
Attorney General Michael Mukasey on Monday tapped Nora Dannehy, a career prosecutor from the U.S. Attorney’s Office in Connecticut, to pursue possible criminal charges against Republicans involved in the 2006 purge. In a letter filed on Tuesday with the U.S. Court of Appeals for the D.C. Circuit, which is considering the subpoena issue, Justice Department lawyers said that “the counsel to the president has informed us that if Ms. Dannehy determines that access to information from the White House would be helpful to assist her review, the White House will provide her with such information.”
In appointing Dannehy, Mukasey was following the recommendations encapsulated in a report by Justice Department Inspector General Glenn Fine and Office of Professional Responsibility Director Marshall Jarrett. The report, released on Monday, said counsel was needed to follow up on allegations of criminal conduct, including false statements, obstruction of justice, and wire fraud. Jarrett and Fine said they were “unable to fully develop the facts” because several witnesses — former White House adviser Karl Rove and former White House Counsel Harriet Miers among them — refused to cooperate. The report’s authors also criticized the White House for refusing to turn over internal documents discussing the purge.
As the Justice Department watchdogs were conducting their 18-month investigation, the firings drew the White House and Congress into a historic battle over congressional subpoena power. The House Judiciary Committee filed a lawsuit earlier this year to enforce subpoenas issued to Miers and the White House. In July, U.S. District Judge John Bates ordered Miers to appear before committee to testify about her role in the purge. Bates also ordered the White House to turn over documents related to the firings or provide the House with a log detailing why each document was withheld.
The D.C. Circuit is weighing a request by the White House to stay Bates’ ruling until the appeals court decides the larger issue of whether the president can immunize current and former aides from congressional subpoenas.
In a letter filed with the D.C. Circuit on Monday, House General Counsel Irvin Nathan said the Justice Department report demonstrated that “a stay would further the White House’s continued attempt to stonewall all investigations.”
“If the White House will deny its own department access to key witnesses and documents, it is clear that, if undeterred by the court, it will continue to prevent the committee from performing its constitutional duty,” Nathan said.
Principal Deputy Associate Attorney General Carl Nichols, responding in the letter filed on Tuesday, said the White House would give Dannehy access. He also pointed to Appendix A of the report, a letter to the Justice Department from Deputy White House Counsel Emmet Flood, describing the White House's cooperation in the watchdogs' probe.
The White House turned over copies of e-mails between the White House and third parties, including the Justice Department, but it withheld internal documents related to the firings. There was no assertion of executive privilege — because the Justice Department is part of the executive branch — but Flood noted that the documents were "covered by the deliberative process and/or presidential communications component of executive privilege in the event of a demand for them by Congress."
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