White House Standoff: A Way Out

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
If I hear the world "Texas showdown" one more time to describe the current impasse in the scandal over the firing of eight federal prosecutors last December I swear I will gag. Yes, the conflict promises to grow more intense before it eases. Yes, the aims and priorities of the executive branch are inconsistent with those of the legislative branch. And, not to get too psychological on y'all but, yes, I believe that Democrats in Congress feel so empowered and angry after so many years in the wilderness of the minority that they are likely to push further than they probably ought to.

But it doesn't have to be that way. Because I always like to give back to the country of my choice, and in spite of the fact that I make my living by analyzing public tussles over legal issues, I hereby offer free-of-charge the easiest and most gentle way out of this mess. Here is a proposal that I believe fairly balances the White House's legitimate "executive privilege" priorities with the earnest and honest desire of Congress to find out more about a process gone bad. President Bush yesterday said that he would make available to a small group of legislators for off-the-record, private chats people like political guru Karl Rove and former White House counsel Harriet Miers. Let's start with that modest proposal and build from it.

First, Congress should relent and allow these sessions to take place in private. Sure, I would love to see Rove grilled in public— who wouldn't? I mean, watching Sen. Patrick Leahy (D-Vt.), the Senate Judiciary Committee Chairman, question Rove could be a pay-per-view event in many parts of the country. A long, savory public hearing would be good for my career, I suspect, and sure would beat talking more about the paternity hearing for Anna Nicole Smith's baby. But I am willing to get behind private sessions if it gives the President a measure of comfort about releasing his subordinates to talk candidly about who did what to whom and why when it came to firing those eight federal prosecutors. So, Point One of my Plan is: Private Hearings.

In exchange for that concession, however, the White House must require all of its interviewees to testify under oath and on the record. Here I agree completely with Sen. Leahy when he complained this weekabout how these "off the record" chats in the past have been a farce. Indeed, there is no point in talking to these folks unless they have sworn to tell the truth and posterity requires it all to be recorded so that the historians of our children's generation can explain it all. Otherwise, it is just a meaningless exercise in legal and political mumbo-jumbo. Point Two: Under Oath and On the Record.

Back to Congress. Democratic leaders should relent and promise that the "record" established by these interviews will be kept sealed and confidential like so many other bits of government business. Furthermore, the Congress should go along with the White House proposal that only a selected group of bipartisan legislators be allowed to be "in the room" when these sessions take place. Congress has enough other things to do aside from getting to the bottom of this fiasco so a smaller group would allow the rest of the gang to work on America's other business. And the more legislators in the room the greater is the chance that material will leak out. Point Three: Under Seal and before a Sub-Group.

Back to the White House. The President should consent to allow this group of legislators to create and then publish a redacted and de-classified "report" of its findings. There can be a minority report and a majority report if there is no unanimity (and I'm just going out on a limb and saying there won't be). This will ensure that the rest of us at least are given some sense of what went on behind closed doors. Why settle for only a part of the story? Because the ends here are more important than the means and there is little doubt in my mind that the information gleaned from these sessions, inside the room and out, will move us closer to answering the serious questions that exist over how the White House and Justice Department dealt with these good and decent U.S. Attorneys. Point Four: Publish a Report.

And, finally, the Attorney General and his chief deputy, Paul McNulty, have to resign. Now. Today. If Alberto Gonzales is as loyal to President Bush as he has shown himself to be over many years, he needs to fall upon his sword one more time and just leave. Only his departure, and the departure of deputy attorney general McNulty, will send the message to the Congress and the rest of us that the White House is willing and able to change the arrogant and misguided way the Justice Department has done business over the past few years. Point Five: The Chiefs Have Got to Go.

There you go. Easy as pie. A compromise that works, saves time and energy and a potential constitutional showdown, and gives us all some concrete results. No need to thank me, Mr. President and Sen. Leahy, just get to work on making it happen.