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Age of Obama
Barack Obama's presidency

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George W. Bush's presidency since 2007

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George W. Bush's presidency from 2005-06

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From free trade to the Kosovo crisis.

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Obama Seeks Deal on Bush Privilege

By Jason Leopold
February 17, 2009

Hoping for a negotiated settlement, Barack Obama’s Justice Department has requested a two-week delay in a court deadline regarding enforcement of congressional subpoenas demanding the testimony of two Bush administration officials.

The Justice Department was scheduled to file a federal appeals court legal brief on the dispute by Wednesday, but instead sought a delay until March 4 because “negotiations are ongoing” between Congress and lawyers for former White House counsel Harriet Miers and ex-chief of staff Josh Bolten.

Democrats in Congress have been seeking testimony from Miers and Bolten about the Bush administration’s firing of nine U.S. Attorneys in 2006. To stymie the investigation, President George W. Bush barred the witnesses from cooperating and asserted a broad claim of executive privilege.

Before leaving office, Bush insisted that his executive privilege extended into his post-presidency. Now, Obama’s Justice Department has become a third player in the negotiations, faced with conflicting interests – Obama’s statements during the campaign that Bush had overreached in his privilege claims while not wanting to undermine the Office of the President.

“These tripartite discussions have been complicated and time-consuming," the Justice Department said in its court motion. "The requested 14-day extension is appropriate to permit these negotiations an opportunity to succeed, potentially obviating the need for this Court to address the sensitive separation-of-powers questions presented in this appeal."

Last week, White House Counsel Gregory Craig said Obama has privately urged congressional lawmakers to try and negotiate a settlement over a separate dispute in which former Bush adviser Karl Rove has refused to appear before Congress and testify about the federal prosecutor dismissals.

"The President is very sympathetic to those who want to find out what happened," Craig said. "But he is also mindful as President of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle."

Obama’s position suggests he may support some form of executive privilege as asserted by ex-President Bush over Rove’s testimony. Gregg’s office would not elaborate on his statement.

Michael Hertz, an acting assistant attorney general in Washington, said “the inauguration of a new President has altered the dynamics of this [Miers-Bolten] case and created new opportunities for compromise rather than litigation.”

The settlement talks also include whether internal White House documents, such as e-mails, held by Bolten and Miers will be turned over to Congress. It’s unclear whether House Judiciary Committee Chairman John Conyers, who last week issued a third subpoena to Karl Rove, is satisfied with the pace of the negotiations. His office declined to comment on the matter.

Bad-Faith Negotiations

Last year, similar talks between Congress and the Bush administration over Bolten’s and Miers’s testimony were attempted. Then-White House Counsel Fred Fielding wrote to Conyers requesting a meeting, saying the White House was interested in working “cooperatively to resolve these issues.”

However, the talks proved fruitless and House counsel Irv Nathan characterized the negotiations as "completely useless."

"We have not found willing partners on the other side of the table," Nathan said in federal court hearing last year. "We're being dunced around here."

U.S. District Judge John Bates, a Bush appointee, agreed that the White House was not negotiating in good faith and was simply trying to run out the clock.

“Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch [the Judiciary] would not be necessary,” Bates wrote.

Under a Democratic administration, negotiations may end up being more acceptable to Democrats in Congress. But thus far, Conyers does not appear to be satisfied with the direction of the negotiations – and Obama could come under criticism for supporting continued Bush secrecy.

During Campaign 2008, Obama said Bush was overreaching with his claims of executive privilege. Then, on his first full day in office, Obama signed an executive order reining in the power of former presidents to keep their historical records secret.

Obama directed the National Archives and Records Administration to consult with the Justice Department and White House counsel "concerning the Archivist's determination as to whether to honor the former President's claim of privilege or instead to disclose the presidential records notwithstanding the claim of privilege."

Now, however, Obama’s Justice Department is pushing Congress to reach some accommodation with the Bush administration’s executive privilege claims.

Jason Leopold has launched his own Web site, The Public Record, at

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