RNC Now Seeks Shelter of Executive Privilege

By Jason Leopold
Aug. 16, 2007

The Republican National Committee said it will not abide by a subpoena and turn over documents to a Congressional committee investigating the firings of at least eight US attorneys last year because the RNC is waiting to see if the White House will assert executive privilege over RNC documents at the center of the controversy, according to an outside law firm retained by the RNC.

The White House has asserted executive privilege to block senior administration officials from testifying before Congress about their involvement in the decision to fire the federal prosecutors. Moreover, the White House has cited executive privilege in declining to turn over specific documents to Congress that may shed further light on the circumstances behind the attorney firings. The US attorneys believe they were fired for partisan political reasons. In some instances, the US attorneys said they were pressured by Republican lawmakers and RNC operatives to file criminal charges against Democrats at the center of public corruption probes prior to last year's midterm election as well as individual cases of voter fraud, which the attorneys said was based on weak evidence, in order to cast a dark cloud over Democratic incumbents and swing election results toward Republican challengers.

Earlier this year, internal Justice Department documents related to behind-the-scenes discussions involving the US attorney firings revealed some Bush administration officials have primarily used email accounts maintained by the RNC to conduct official White House business in what appears to be a violation of the Presidential Records Act. The RNC is believed to have thousands of pages of documents from White House officials in its possession, dating back to 2005, that could answer lingering questions about the role the administration played in the decision to fire the US attorneys.

The latest salvo between the RNC and Congress over the documents under subpoena sets the stage for a legal showdown between the House and RNC Chairman Robert Duncan, who Judiciary Committee Chairman John Conyers threatened to hold in contempt if documents and internal RNC emails relating to the Congressional probe are not turned over to his committee. Neither Conyers nor a spokesman for the congressman returned calls for comment on Monday. Presumably, any further legal action would take place when Congress returns from its summer vacation next month.

In a letter sent on Friday to Conyers, Robert Kelner, an attorney at Covington & Burling in Washington, DC, said the White House counsel's office instructed the RNC not to "produce Category Two documents at this time."

According to a letter Conyers sent Kelner on August 2, the so-called "Category Two" documents include "hundreds of pages, as relating to communications with or among White House officials concerning candidates for US Attorney positions in the Central District of California, the Middle District of Tennessee, and the District of Montana."

At issue is whether the "Category Two" documents are relevant to the Judiciary Committee's investigation into the firings of the US attorneys. The White House has taken the position that President Bush has the "constitutional prerogative" to nominate US attorneys and, therefore, any discussion about the issue between Bush administration officials and RNC officials is off limits to Congress. Conyers says Congress has the right to obtain the documents regarding the White House's interest in selecting US attorneys in specific parts of the country.

The Judiciary Committee chairman has taken issue with the White House's interpretation of the law, stating, "the president has no inviolable constitutional prerogative to nominate US Attorneys."

"Instead, US Attorneys are inferior officers under Article II, section 2 of the Constitution, and are nominated by the President because Congress has provided for that authority," Conyers said in his August 2 letter to Kelner.

Kelner's response to Conyers states that the White House counsel's office informed him the documents Conyers's committee is attempting to obtain "appears to be outside the scope of the Committee's investigative authority, which is limited to areas which Congress may legislate, and instructed the RNC not to produce the Category Two documents at this time."

"Accordingly, the RNC is awaiting a determination by the White House as to whether it will invoke executive privilege over those documents," Kelner's letter says. "In the meantime, the RNC is proceeding deliberately and cautiously by withholding them pending the outcome of the White House's discussion with the Committee and concerning the White House's decision concerning invoking the privilege."

Kelner said the RNC would be "willing to accept your invitation to meet with your staff, together with representatives of the White House Counsel's office to discuss these issues in greater detail."

The Judiciary Committee voted last month to hold in contempt former White House counsel Harriet Miers and President Bush's chief of staff, Joshua Bolten. Miers and Bolten cited Bush's assertion of executive privilege in withholding internal executive branch documents from Congress and in refusing to testify before the panel about the US attorney dismissals. President Bush said he would instruct the Department of Justice not to permit the US attorney for the District of Columbia to impanel a grand jury to compel his aides' testimony, on grounds it would interfere with Bush's assertion of executive privilege.

Letters sent to the RNC and the Bush/Cheney 2004 Campaign in April by Congressman Henry Waxman, chairman of the House Oversight and Governmental Reform Committee, urged the two groups to preserve all emails sent by White House officials from their servers, because of their relevance to Congressional probes, including the US attorney firings.

Jason Leopold is senior editor and reporter for Truthout. He received a Project Censored award in 2007 for his story on Halliburton's work in Iran.