White House lets Leahy’s deadline pass

Vice President Dick Cheney’s office on Monday responded separately from the White House to a Senate subpoena for documents on warrantless wiretapping and resurrected the controversial contention that Cheney is not part of the executive branch.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) set Monday’s subpoena deadline after granting an extension request by the White House. Presidential counsel Fred Fielding, as expected, told Leahy in a letter that a second delay, until after Labor Day, would help Congress and the administration “expeditiously seek a means of accommodation that will negate the need for an assertion of executive privilege.”

{mosads}But the response from the vice president was more surprising, because the White House was believed to have abandoned the argument that Cheney is a hybrid entity with both executive and legislative powers.

Cheney’s lawyers first crafted the argument to bolster his lack of compliance with an executive order on the safeguarding of classified information, a tactic that backfired amid Democratic anger and derisive jokes on late-night talk shows. Yet Cheney counsel Shannen Coffin wrote to Leahy on Monday that “the issuance of the subpoena to this office was procedurally irregular” because the judiciary panel only authorized Leahy to issue summonses to the Executive Office of the President (EOP) and the Justice Department.

Leahy dryly noted that the White House website currently lists the vice president as a part of the EOP, also distributing copies of a 1978 executive order that describes the vice president as part of the EOP.

Telling Coffin to look at the White House website “may seem too glib an answer,” Leahy told reporters. “My answer would be look at the law. But these are people that don't look at the law very often.”

Stung by a furious backlash after they approved a White House-written fix to the Foreign Intelligence Surveillance Act (FISA), House and Senate Democratic leaders both have signaled their plans to take up a new bill remodeling the administration’s eavesdropping program in September. Leahy said that he and Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.) are prepared to move forward on a new FISA bill that strengthens the courts’ role in wiretapping regardless of whether the White House responds to the subpoenas.

Leahy’s subpoenas seek details on the legal justification for the warrantless eavesdropping, for which the White House is expected to assert executive privilege. Even former Attorney General John Ashcroft’s advisers were unable to gain complete information on the wiretapping program in 2004, according to notes released last week by Robert Mueller, director of the Federal Bureau of Investigation.

Leahy also asserted that he is prepared to pursue a contempt vote against the White House when Congress returns, although he appeared inclined to continue negotiating with Fielding for the time being. A contempt vote in either chamber would effectively move the subpoena dispute to the courts, with a final ruling unlikely before President Bush leaves office.

White House spokesman Gordon Johndroe told reporters on Monday that Fielding continues to work toward a deal with Democrats, indicating that the White House did not consider meeting Leahy’s second deadline.

“An August 20th deadline was not in the original request,” White House spokesman Gordon Johndroe told reporters on Monday. “But I think Mr. Fielding's letter lays out specifically how we're going to work with them and hopefully come to some sort of accommodation.”