Obama team expected to broker subpoena deal

updated 2:08 p.m. ET Nov. 12, 2008

WASHINGTON - A years-long legal dispute between the White House and Congress over testimony by President Bush's aides likely will be resolved under the incoming Obama administration, former government lawyers from both political parties agreed Wednesday.

Additionally, the lawyers said Democratic President-elect Obama probably will seek to declassify more Justice Department legal memos — as well as documents across the federal government — than did the outgoing GOP administration.

Robert Litt, a former prosecutor and top Justice Department criminal lawyer during the Clinton administration, said it's safe to assume that "a serious review of the classification system is on the table."

Added former Reagan White House Counsel Arthur Culvahouse: "It's simply good government for (legal memos) to be open to review as much as possible."

The men spoke at a Brookings Institution discussion about legal policy in the Obama administration.

Both lawyers said Obama will likely broker a compromise with the Democratic-led Congress over whether to force top Bush aide Joshua Bolten and former aide Harriet Miers to testify in front of lawmakers or hand over documents about the 2006 firings of nine U.S. attorneys.

Democrats say the firings, which led to the resignation of former Attorney General Alberto Gonzales last year, were politically motivated. That charge was bolstered by an internal Justice Department investigation, which in September found "substantial evidence that partisan political considerations played a part in the removal of several of the U.S. attorneys."

The Justice Department has maintained that Congress can't force top White House aides to testify because it infringes on the executive branch's independence.

A federal appeals court last month refused to immediately enforce the House Democrats' subpoenas, ruling that time will run out on this year's congressional session before the thorny legal skirmish could be resolved.

Litt, who is informally advising the incoming Obama administration, predicted the Democrats will move quickly next year to push forward with the subpoenas.

He called it reasonable to believe that House Speaker Nancy Pelosi will ask the White House to reconsider its use of executive privilege in the dispute.

However, Litt said, Obama more likely will hammer out a compromise for Democrats to get at least some of the information they want. Litt said it would likely be done without forcing the subpoena issue that could set a long-lasting precedence for future White House dealings with Congress.

Culvahouse said he agreed that a deal likely will be stuck between the two sides in a political detente that had eluded the Bush administration.

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