Wednesday, November 2, 2011
The House Energy and Commerce Committee is poised to seek a subpoena for White House documents related to Solyndra. The Republican-controlled Committee will meet Thursday morning at 9:00 a.m., when it is expected to approve a resolution authorizing the subpoena to White House Chief of Staff Bill Daley and VP Chief of Staff Bruce Reed. The meeting will be webcast live here.
The last time we covered congressional subpoenas to the White House, a Democrat-controlled House Judiciary Committee issued a subpoena to former White House Counsel Harriet Miers and Chief of Staff Josh Bolton in the Bush administration--and then sued to enforce them. The district court ruled in Committee on the Judiciary v. Miers and Bolton that Miers and Bolton did not enjoy absolute immunity, but that they may assert executive privilege to specific questions, "where appropriate."
The Committee's action on Thursday will raise some of the same issues, although there's no indication that the White House will claim a sweeping absolute privilege. Counsel to the President Kathryn H. Ruemmler said it this way, in her first response to the Committee's request for the documents:
Your most recent request for internal White House communications from the first day of the current Administration to the present implicates longstanding and significant institutional Executive Branch confidentiality interests. Encroaching upon these important interests is not necessary, however, because the agency documents the Committee has request, which include communications with the White House, should satisfy the Committee's stated objective--to "understand the involvement of the White House in the Review of the Solyndra loan guarnatee and the Administration's support of this guarantee."
She elaborated in her second response:
[I]t has been well established for decades that the President has a strong, constitutionally-rooted interest in preserving the confidentiality of Executive Branch deliberative communications. This is especially true for White House communications because it has long been recognized that the President's advisors must be able to engage in candidate deliberations in advising and assisting the President in the discharge of his constitutional duties. Republican and Democratic administrations have sought to avoid the chilling effect that disclosure of such internal communications to Congress would have on the free and open exchange of ideas within the White House by accommodating Congressional interests in a manner that minimizes these concerns. . . .
This accommodation process, of course, requires that both branches work to accommodate each other's needs and interests.
The administration's position on executive privilege isn't nearly as strong as the absolutist position of the Bush administration in the Miers and Bolton case. Moreover, the adminstration has already turned over scores of thousands of pages of documents, including communications with the White House. And, indeed, Ruemmler's letters seem to suggest that the administration may be open to yet more accommodation.