Hill battle over Justice Department records likely to escalate

The Justice Department appears set to refuse separate subpoenas by two House committees for transcripts of interviews of President Bush and Vice President Dick Cheney by former Special Counsel Patrick Fitzgerald's office, creating the latest of several fights over congressional oversight power.

House Oversight and Government Reform Chairman Henry Waxman, D-Calif., announced Friday that Justice told the committee it would not comply with a subpoena to Attorney General Michael Mukasey for records of interviews of Bush and Cheney that Fitzgerald's office created during its investigation into the leak of the identify of former CIA agent Valerie Plame.

The department also appears likely to refuse a subpoena issued to Mukasey Friday by House Judiciary Chairman John Conyers, D-Mich., for the Bush and Cheney interview records.

The Justice Department gave the Oversight and Government Reform Committee access to redacted transcripts of Fitzgerald's interviews of White House staff, but declined Conyers' request for similar access.

"In contrast to the Oversight Committee, the Judiciary Committee does not have government-wide oversight jurisdiction and it does not have jurisdiction over the White House," Principal Deputy Assistant Attorney General Peter Nelson wrote in a recent letter to Conyers.

A spokesman said Monday that Justice is reviewing Conyers' subpoena.

Conyers and Waxman have said they are renewing inquiries into the Plame matter based on new information, including former White House Press Secretary Scott McClellan's claims that Bush and Cheney urged him to deny that Cheney's former chief of staff I. Lewis (Scooter) Libby was not involved in the leak. Libby, who Fitzgerald found was one of three administration officials who disclosed Plame's CIA work to reporters, was convicted of perjury and other offenses. Bush commuted his sentence.

Neither chairman has said how he will respond to a refusal to comply with a subpoena, but the primary recourse for chairmen to enforce their demands would be to call for votes on holding Mukasey in contempt of Congress for refusing to comply. Conyers is pursuing contempt charges in U.S. District Court against White House officials for refusing committee subpoenas to appear at hearing. Waxman recently scheduled a vote to hold officials from EPA and OMB in contempt to refusing to turn over subpoenaed documents, but canceled it after the agencies claimed executive privilege. In declining to give the Judiciary Committee access to the Bush and Cheney transcripts, Nelson said "the executive branch has substantial confidentiality interests in these documents," but the department has not yet made an executive privilege claim over the documents.

However each side proceeds, observers expect the fight over the Plame documents will be among several disputes between the Democratic-led Congress and the White House that drag to the end of the Bush administration or beyond. As the clock winds down, committee chairmen are stepping up pressure. Conyers' subpoena Friday also demands documents sought by the committee in investigations, including the firing of U.S. attorneys and activities of the department's civil rights division.

In a letter last Thursday, Conyers also urged Justice to cooperate with a GAO probe into alleged politicization of case selection in the department's civil rights division. "DOJ officials have removed key documents from files, claiming GAO does not have a right to access predecisional or deliberative information," Conyers wrote. GAO confirmed those facts. The Justice Department declined to comment.