Reader Question: Will the White House Win The Rove/Miers Battle With Congress?

Mckenzie in Maryland wrote in today to ask what will happen if Congress subpoenas top White House aides and President Bush refuses to allow them to testify. As we noted yesterday, White House Counsel Fred Fielding offered a deal to congressonal Democrats whereby aides like top adviser Karl Rove and former Counsel Harriet Miers would testify privately and not under oath. Instead, the House Judiciary Committee voted today to approve subpoenas for top officials, though they have not yet officially issued them. News Desk consulted several constitutional law experts on the matter.

"An appeal could easily take over a year and run to the end of the president's second term," says law Prof. Jonathan Turley of George Washington University. If Rove, Miers, and others were subpoenaed and didn't show up, he says, they could be held in contempt of Congress.

"Normally, there would be a referral to the Justice Department, which would obviously be a bit odd here," Turley says. Instead, "they could seek a special prosecutor or go directly to court."

As for who would eventually come out on top of the constitutional donnybrook:

"I would be surprised if the president could prevail on the full scope of the executive-privilege assertion here," Turley says. "Clearly, there are some protected areas, but a complete bar is a pretty extreme claim. Most presidents avoid court fights over the privilege in deference to their successors. Since executive privilege is not mentioned in the Constitution, it is a creation of the courts and can rise or fall with such decisions. For that reason, presidents have been very circumspect in going to court."

Richmond University law Prof. Carl Tobias, however, says he doesn't expect a court case here.

"Both sides will negotiate a reasonable solution," he predicts. "Congress will lose time if it goes to court, as it will take too much time, so it must work [out] a solution with the White House."

Update: Martin S. Flaherty of Fordham Law School in New York tells News Desk that the Senate, if a White House official refuses to testify, would go to the D.C. District Court, where the case would probably end up before the Supreme Court because of what he calls "the Linda Greenhouse Effect"--the top court's penchant for hearing cases that are likely to end up on the front page of the New York Times, where Greenhouse covers the Supreme Court.

"It's probably four-four with [Justice Anthony M.] Kennedy in the middle," Flaherty says. It's anyone's guess which way Kennedy would fall he says, though he added that, if he had to guess, he would predict Kennedy to side with Congress.

Photo of Bush by Charlie Archambault for U.S. News & World Report