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Also published at my web magazine, The Public Record.
The Justice Department and White House lawyers are engaged in intense negotiations with attorneys for George W. Bush and three of his former advisers over demands that they testify before Congress and turn over documents about their alleged roles in the firings of nine U.S. Attorneys in 2006, according to court papers filed Thursday, lawmakers who serve on the House Judiciary Committee, and the House Counsel.
It’s unclear how negotiations are shaping up, but White House Counsel Gregory Craig, Bush’s lawyer Emmett Flood and House Counsel Irv Nathan indicated they may soon reach some sort of deal that will see former Bush adviser Karl Rove testify before the House Judiciary Committee, which issued a third subpoena to him this week. Whether Rove will testify about the U.S. Attorney firings is unknown and whether he was offered a deal of sorts in exchange for his testimony is a possibility, lawmakers knowledgeable about the talks said. Recently, Rove’s attorney, Robert Luskin, told House Judiciary Committee Chairman John Conyers that Rove would testify about the alleged political prosecution of former Alabama Gov. Don Siegelman but the not the firings about the federal prosecutors. Conyers rejected that offer in writing and subpoenaed Rove to appear before the Judiciary Committee for a deposition Monday.
Additionally, the U.S. Court of Appeals for the D.C. Circuit ordered the Obama administration to file legal briefs by Feb. 25 stating whether it intended to back Bush’s extraordinary claims of executive privilege involving the testimony of two other advisers, ex-White House Counsel Harriet Miers and former Chief of Staff Josh Bolten, who were held in contempt of Congress last year for refusing to testify about the U.S. Attorney firings.
The appeals court balked at pleas by Acting Assistant Attorney General Michael Hertz to allow the administration more time to negotiate a settlement due to “complicated and time consuming discussions” involving “sensitive separation-of-powers questions presented in this appeal.”
The Justice Department filed a motion requesting the appeals court reconsider it's decision and allow the full two-week delay it sought.
“The inauguration of a new President has altered the dynamics of this case and created new opportunities for compromise rather than litigation. At the same time, there is now an additional interested party—the former President—whose views should be considered,” the DOJ's motion says, in language identical to what they submitted to the court last week when it asked for the delay. “Negotiations are now ongoing,” they said, adding, “these tripartite discussions have been complicated and time consuming.”
If a deal is not reached by Wednesday and the Justice Department fails to file a brief stating its position the appeals court indicated it may press ahead with sanctions against the Justice Department.
Craig, the White House counsel, issued a statement last week stating that Obama has encouraged all sides to enter into a settlement and avoid a prolonged legal battle.
"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."
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.