President Will Reject Requests for Miers Documents

By Richard W. Stevenson
The New York Times

Wednesday 05 October 2005

Washington - President Bush signaled on Tuesday that he would most likely reject any requests from the Senate for documents written by Harriet E. Miers during the nearly six years she worked in the White House before he chose her to fill a vacancy on the Supreme Court.

Asked at a news conference whether he would release some or all of her legal work as White House counsel, Mr. Bush said that the principle of executive privilege was important and that any Senate request for documents would be a distraction from considering Ms. Miers's qualifications.

"I just can't tell you how important it is for us to guard executive privilege in order for there to be crisp decision making in the White House," Mr. Bush said.

Some Democrats in Congress have already indicated that they want access to documents from Ms. Miers's work at the White House. They say there is such a scant public record about her judicial philosophy and her thinking about the issues of the day that the Senate needs more information to judge her fitness for a lifetime seat on the court.

"To ensure that the American people understand who Harriet Miers is and what she stands for, I have urged President Bush to make available documents and information relating to Ms. Miers's service in the White House," Senator Edward M. Kennedy, a Massachusetts Democrat and member of the Judiciary Committee, said in a statement.

Mr. Bush, though, appeared resistant not only to making public her work as White House counsel but also her work in two other senior jobs in the West Wing. Before becoming White House counsel in November, she was deputy White House chief of staff for policy and before that staff secretary, a job in which she controlled much of the paper flow into the Oval Office.

In all three positions, she would be privy to internal deliberations on a wide range of issues, and especially as deputy chief of staff and counsel, she could have offered her views on nearly any subjects that confronted the administration.

The Democratic National Committee circulated a list of topics that Ms. Miers might have been involved with at the White House that could raise questions about her independence and ability to decide issues important to the administration.

They include, the committee said, the investigation into the leak of a C.I.A. operative's name, the development of the administration position for using torture on detainees from the fighting in Afghanistan and Iraq , the decision to suspend a prevailing wage requirement for contractors working on post-hurricane recovery and the White House efforts last year to respond to new questions about Mr. Bush's service in the National Guard.

Democratic Congressional aides raised questions about what role Ms. Miers might have had in a brief that the administration filed in a case centering on a New Hampshire law that requires parental notifications for women younger than 18 who seek to have abortions. The case is scheduled for argument before the Supreme Court this fall.

Internal deliberations about the case could provide some insight into her position on abortion, the issue that more than any other frames the ideological debate over the direction of the court.

Mr. Bush left the door open a crack to some sort of deal, saying that during the hearings on the nomination of John G. Roberts Jr. as chief justice "we handled the issue."

For Chief Justice Roberts's hearings, the administration released documents from the time he spent working in the White House counsel's office in the Reagan administration, saying they were covered by the Presidential Records Act.

Under the act, most White House documents are ultimately made public after being reviewed for privacy and national security concerns, but only years after the president has left office.

The Roberts documents from that period two decades ago were already in the possession of the National Archives and the Ronald W. Reagan Library. Some of them had already been made public, and the White House expedited the release of others.

But Mr. Bush stood fast against Democratic demands for access to documents written by Chief Justice Roberts when he was the principal deputy solicitor general at the Justice Department in the administration of the first President Bush.

For those documents, the White House position was that there was no presumption that they would be made public and that releasing them would hinder robust debates inside any administration over important issues that would be coming before the Supreme Court.

In this case, the Presidential Records Act will not come into play because it does not apply to an administration still in office, said Scott McClellan, the White House press secretary.

Mr. McClellan suggested that Mr. Bush was likely to take a hard line against any request for documents from Ms. Miers's time at the White House in any of her positions.

"It would be unprecedented to release confidential, deliberative documents of a sitting president," he said. "There is a separation of powers issue here."

Some Republicans on the Judiciary Committee signaled that they would back the White House on the question.

After meeting with Ms. Miers on Tuesday, Senator Orrin Hatch, Republican of Utah , said: "I think that most of the information they are going to have to get from her is going to come in the form of questions and at the hearings, because there is no way that the White House is going to give privileged documents to the Senate. That is just what you call a ruse.

"My colleagues on the other side will do that every time."

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