DoJ 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.

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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.

Last week, the DOJ asked the appeals court to delay until March 4 a deadline for the Obama administration to file legal briefs while negotiations played out. The appeals court formally rejected that request Thursday.

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."

Obama’s position suggests he may support some form of executive privilege as asserted by ex-President Bush over Rove’s testimony. On the campaign trail he said

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.

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 Nathan, the House counsel, 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.

Authors Bio:
Jason Leopold is Deputy Managing Editor of Truthout.org and the founding editor of the online investigative news magazine The Public Record, http://www.pubrecord.org. He is the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview. He is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran. He was recently named the recipient of the Military Religious Freedom Foundation's Thomas Jefferson Award for a series of stories he wrote that exposed how soldiers in Iraq and Afghanistan have been pressured to accept fundamentalist Christianity.