Press Background Briefing by Senior Administration Officials on Executive Privilege
10:07 A.M. EDT
MR. FRATTO: This is Tony Fratto, Deputy Press Secretary at the White House. This is, as the operator said, a senior administration official call. So that's your sourcing. I'll turn the phone over to my colleague. He'll make some opening remarks, and then we will open it up to questions.
SENIOR ADMINISTRATION OFFICIAL: Good morning. Before we take your questions, I'd like to just give you a little background, so we're all working from the same page. As you know, the Senate and House Judiciary Committees issued a total of five subpoenas. Two of the subpoenas to the White House for documents to be produced no later than today. A third subpoena was issued by the House Judiciary Committee to Harriet Miers for documents and testimony, and the response and hearing date is simultaneously set for July 12th. The fourth and fifth subpoenas were issued by the Senate Judiciary Committee to Sara Taylor for documents and for testimony, and the documents subpoena called for response this morning as well.
In response to those subpoenas, the President has asserted executive privilege over the requested document relating to the subpoenas, and has directed that none of them be produced pursuant to subpoena. This morning the chairs of both committees were notified by telephone and also are now in receipt of a letter from the Counsel to the President setting forth the President's decision. That letter is accompanied by a letter from the Department of Justice in which the President is advised of the propriety and legality of such an exercise of executive privilege in this instance.
We regret that we were forced to take this step. We had very much hoped that accommodation could be reached and this could be avoided. Please note this exercise -- assertion, excuse me, of executive privilege applies only to documents today, but in reading the Counsel of the President's letter, you should note that although it relates only to documents today, which is the only thing in issue today, the President has also advised that consistent with his view and the Department of Justice advice, that would be a valid exercise of executive privilege, as the testimony that he is prepared to exercise executive privilege as to testimony at the appropriate time if this matter is not resolved.
Please note further that the President wanted and also instructed Counsel of the President to confirm to both committees that he is willing and the White House is willing to revive the pending offer of accommodation if there is a withdrawal of the subpoenas or it would not be -- if it would not be under compulsion. As I say, we again regret that we had to reach this impasse, because we hoped that there could be accommodation. Unfortunately, that has not occurred.
Our system is a system, obviously, of separation of powers. Each branch has its prerogatives. And the constitutional design of our system, the President must be able to receive unfettered advice and counsel from the people working around him and their deliberations and in the performance of their executive branch duties, as they relate to the President's constitutional obligations and duties.
And executive privilege protects from compelled testimony and forced disclosure of those things. It's a principle the President feels very strongly must be protected for the institution of the presidency and for future Presidents.
I'll be happy to take any questions.
Q: I have actually two questions. First, you said the President is prepared to exercise, or assert executive privilege with respect to testimony. Democrats and Republicans on Capitol Hill seem to agree that if the President would offer a transcript for these interviews, that they might withdraw the subpoenas.
So two questions. First, why not just agree to their request for a transcript? And, secondly, how confident are you that if this goes to court, you will win in court?
SENIOR ADMINISTRATION OFFICIAL: Let me answer your first question as to transcripts. Obviously, there has been a lot of discussion back and forth in that regard. The position that the President took and conveyed to the committees and the offer of compromise did not include transcripts. The accommodation was designed to provide information, not to appear to be having testimony without having testimony. One of the concomitants of testimony, of course, is transcripts.
As far as the debate goes, often cited is that a transcript is not wanted because otherwise there would be a perjury trap. And, candidly, as everyone has discussed, misleading Congress is misleading Congress, whether it's under oath or not. And so a transcript may be convenient, but there's no intention to try to avoid telling the truth. The transcript issue has been debated, as I mentioned before, but we've not been able to resolve that as far as the committees are concerned. The President felt that he made an offer which was a generous and historic offer, if you will, and that he hopes that it would be accepted. He still hopes it would be accepted.
And the second question was?
Q: How confident are you that you would win in court?
SENIOR ADMINISTRATION OFFICIAL: We've been advised and we're confident that our position is sound. I'm not going to speculate as to whether it ends up in court or where it ends up. I can just advise you that the President and his advisors are confident in the soundness of our decision.
Q: And one follow up. They issued yet more subpoenas yesterday on a different topic, the wiretapping. Can we take this as a foreshadowing of what your response will be to those subpoenas?
SENIOR ADMINISTRATION OFFICIAL: Our response to those subpoenas will be the same as our response was before. We would like to accommodate and we will seek ways of accommodating. But if the subpoena is insisted upon, we will have to deal with that at the time we discuss and make our decision. I'm not going to speculate at this point.
Q: I take it the President's assertion of executive privilege does not cover Miers and Taylor testifying? Or is he saying that it does -- since they've left the executive branch?
SENIOR ADMINISTRATION OFFICIAL: Oh, thank you for giving me the opportunity to clarify that. The position stated in this letter and in this exercise of executive privilege is only with regard and in regard to documents; that's the only thing at instant issue.
However, the President has advised that he would exercise executive privilege in regard to the testimony of both of those individuals if it gets to that point and the subpoenas are not withdrawn and they're still (inaudible) at the time they're due. The fact that they are no longer present employees has nothing to do with the principle of executive privilege and the information protection that that affords.
Q: Can you give us some background on precedent on that? Have there been other examples where people who have left government have complied with a presidential order not to testify because of executive privilege?
SENIOR ADMINISTRATION OFFICIAL: I'm sure we could provide that for you. I'm searching right now, I'm looking across the table. Does anybody have one -- yes.
SENIOR ADMINISTRATION OFFICIAL: In, I believe, the early 1950s, material was sought from the Eisenhower administration pertaining to conduct at State in the Truman administration. And former -- then former President Truman, himself, wrote a letter objecting to the attempt to obtain such material, and it was resolved, I believe, without turning anything over.
Q: That's documents, not people, right?
SENIOR ADMINISTRATION OFFICIAL: Don't know the answer to that, I think that's right.
Q: Good morning. I had a couple of questions and one is, what happens next? Has the Senate given you any indication of how they're going to react and therefore what would be your next step? Or is there going to go a contempt route, or straight to court, and do we know? And second of all, I had wanted to ask, did you say that you had sought the opinion of DOJ in this?
SENIOR ADMINISTRATION OFFICIAL: Let me take your second question. The opinion of the Department of Justice is attached to the Counsel of the President's letter to the chairs of both the committees, and obviously that is a result of the request from the President for the advice and counsel of the Department of Justice.
Q: And on the "what happens next" question?
SENIOR ADMINISTRATION OFFICIAL: That's entirely up to Congress.
Q: Okay. And can I ask you, in terms of testimony -- I know this only directly covers documents -- but why not agree to let some officials testify, and then in response to certain questions which you felt would impede the President's ability to get the appropriate unfettered counsel from his aides -- why not answer some questions and not answer other questions?
SENIOR ADMINISTRATION OFFICIAL: The subject matter of the subpoenas relates directly to the performance of the duties within the executive branch within the White House in this instance. So we have to take them at their word on the subpoena, and the subpoena covers that, and that's why executive privilege would obtain.
Q: But essentially anything they ask would be not something that you'd be comfortable discussing in that setting.
SENIOR ADMINISTRATION OFFICIAL: We're only responding to the subpoenas.
Q: For any of you, I have a question about -- as a non-legal scholar. My understanding is the evolution of the law, the executive privilege, that there are basically two forms of privilege that a president can claim. And I wanted to clarify: Is the President saying, by doing this, that he himself personally was in receipt of advice about the U.S. Attorney firings, and that's why he's invoking the privilege? The documents went to him; that his staff provided him with advice, and that's what he's protecting.
SENIOR ADMINISTRATION OFFICIAL: Oh no, no, that would be a misconstruction of the breadth of the executive privilege. What is related -- deliberations, formulation of advice, performance of executive branch duties consistent with the President's constitutional obligations.
Q: So he is still maintaining that he had nothing to do with the actual discussions between White House staff, meaning Ms. Miers and Sara Taylor and the Justice Department related to the Attorney firings; that he had no direct involvement.
SENIOR ADMINISTRATION OFFICIAL: No, there's no change in our prior position at all.
Q: But that is -- the way I've stated it is correct?
SENIOR ADMINISTRATION OFFICIAL: Well, state it again. I'm going to make sure -- I don't have a transcript.
Q: Maybe you should get one. That would help. No -- in this case, the President is saying that he had nothing to do, directly himself, with receiving advice about the firing of the U.S. Attorneys and approving the list or adjusting the list. Just because Ms. Miers or Ms. Taylor or Scott Jennings appeared in emails with DOJ discussing that, he is asserting that there is no involvement; his personal involvement did not engage in those discussions.
SENIOR ADMINISTRATION OFFICIAL: He has no personal involvement. Our position has never been any different than that.
Q: Okay, thank you.
SENIOR ADMINISTRATION OFFICIAL: Right.
Q: Hi, thank you all for the chance. Quick procedural question. Could you clarify just why this is on background? The letter, obviously, is on the record, and the substance of our stories -- I just wanted to get that clarification.
MR. FRATTO: We wanted to give you all an opportunity to get more detail and context on the substance of our position and Mr. Fielding's letter, which you have, and can quote from extensively. So this is for your benefit, and if it's something that you can't do, we understand. But we think it's helpful to reporters covering the story.
Q: Okay, thanks. With that, I would like to run a couple of quick things by the senior administration official. What would you say to the argument, sir, that if this does end up in court, and it takes some time to resolve, that that's part of a White House strategy, in effect, to drag this out perhaps even until after the President leaves office?
SENIOR ADMINISTRATION OFFICIAL: The time that this controversy will take is totally dependent upon the actions of Congress. And we're not doing it for design of anything, we're exercising a privilege that the President feels is very important.
Let me give you a little context, which I probably should have mentioned earlier. This is a principle. This is a principle of protecting executive branch prerogatives. This will be the second time this President has exercised executive privilege in his administration. The first time was also on a matter of principle, strictly principle. If you will check, I think -- I'm sure it was 2001. He exercised privilege -- had a request to turn over documents relating to the Department of Justice in the Clinton administration, and communications to and from the Attorney General Reno. This is not a mere exercise relating to a particular event, this is an exercise in an attempt to protect the prerogatives of the President for this President and for future Presidents.
Q: Okay, thank you for that. And also, I just wanted to clarify on the earlier question about the degree to which the executive privilege assertion outlined today may or may not apply to other pending cases as it relates to the subpoenas the White House and other agencies received yesterday. You're saying no speculation at this point about whether the President will exert executive privilege then, too?
SENIOR ADMINISTRATION OFFICIAL: We're not going to comment and speculate on anything except what we're dealing with today, with all due respect.
Q: Just wanted to get an update on what negotiations right now are ongoing between the White House and Congress, if they are, when it comes to potential testimony of Miers and Taylor -- where does that stand right now?
SENIOR ADMINISTRATION OFFICIAL: Right now it stands that negotiations are not taking place and the Counsel's letter reflecting the President's direction is an invitation if they wish to resume negotiations and reopen them, that the President has directed that Counsel to the President do that.
Q: And has the White House also been in contact with both Miers and Taylor on this?
SENIOR ADMINISTRATION OFFICIAL: Well, I'm not going to comment on any direct conversations with the counsel for both of those. But I can advise you and assure you that we have communicated with them. We have also communicated to both of them, through their counsel, the direction of the President that these documents and any documents they may have in their possession that are covered by the subpoena are not to be produced.
Q: Thank you.
SENIOR ADMINISTRATION OFFICIAL: You're welcome.
Q: Thank you all for doing this. I wonder if you could tell us what the sticking point was in the effort to reach an accommodation with Congress? What was the last issue that you weren't able to resolve?
SENIOR ADMINISTRATION OFFICIAL: The last time that we had any discussion with them it was basically a rejection and the characterization of our offer (inaudible) take it or leave it. It was tendered as an accommodation and the only other mention of any facts is something that's been mentioned earlier today, which was, I believe, Senator Specter urging that we might want to consider transcripts as part of our -- excuse me, as part of the President's offer and an accommodation.
Q: And, sir, was that something that you formally discussed with the committee and you couldn't work out the specifics of it? Or did you never really talk to them about that?
SENIOR ADMINISTRATION OFFICIAL: We offered it. It's in the four corners of our offer.
Q: And when was the last time you talked to these committees?
SENIOR ADMINISTRATION OFFICIAL: I talked to Senator Leahy this morning - talked to some congressmen last night, but it was not in (inaudible) courtesy, advising them that the President was about to take this position.
Q: Okay. Thank you.
MR. FRATTO: Thank you everyone. (Inaudible) reminder that the sourcing for the call is Senior Administration Official. We will release a transcript as soon as we have one ready.
END 10:30 A.M. EDT
George W. Bush, Press Background Briefing by Senior Administration Officials on Executive Privilege Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/275866