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The Collective
Friday, July 20, 2007
By Dr. Steven Taylor

Via WaPo: Broader Privilege Claimed In Firings

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege.

Sorry, but it is the job of the Justice Department to pursue execution of the laws passed by Congress, not to ignore laws because the President doesn’t like them. Indeed, the underlying logic here is that the Congress can’t investigate the executive branch if the President has decided that he doesn’t want them to do so-so much for checks and balances and oversight (although ultimately the logical conclusion of the administration’s position here is that the only real c&b power that the Congress has is impeachment, as they can do that by themselves).

According to the piece, the Reagan administration once asserted the same position, which involved an EPA official named Burford. The case ended up in court, and Congress eventually got what it wanted:

In the Burford case, which involved spending on the Superfund program, the White House filed a federal lawsuit to block Congress’s contempt action. The conflict subsided when Burford turned over documents to Congress.

As Karen Tumulty notes at Swampland:

The article points out that the Reagan Administration made the same kind of argument in 1984, when EPA Administrator Anne Gorsuch Burford was cited for contempt by the House, but before it got to court, Burford turned over documents. In fact, that is how these standoffs over executive privilege have generally turned out in the past-with a deal. Neither side appears interested in one this time.

One wonders. Jacob Sullum at Reason Hit and Run thinks a deal will take place:

I’ll go out on a limb and predict that the current confrontation, like the one with Gorsuch and every other showdown over documents reviewed by the CRS report, will be resolved without any actual prosecutions for contempt. After some more posturing, the administration will give Congress the information it wants while insisting it really doesn’t have to.

I will confess, that while a deal may happen, I am more inclined to think that the administration will stonewall and try and run out the clock rather than have to submit to the Congress.

All of this (the current case and the Burford case) is part of the “unitary executive” theory that this administration holds to rather tightly (back to WaPo):

David B. Rifkin, who worked in the Justice Department and White House counsel’s office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a “unitary executive.” In practical terms, he said, “U.S. attorneys are emanations of a president’s will.” And in constitutional terms, he said, “the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch.”

However, I have to agree with the following:

But Stanley Brand, who was the Democratic House counsel during the Burford case, said the administration’s legal view “turns the constitutional enforcement process on its head. They are saying they will always place a claim of presidential privilege without any judicial determination above a congressional demand for evidence — without any basis in law.” Brand said the position is essentially telling Congress: “Because we control the enforcement process, we are going to thumb our nose at you.”

Certainly when the President believes that the Justice Department is a portion of his overall executive authority, then that is where you end up.

I further concur with this:

Rozell, the George Mason professor and authority on executive privilege, said the administration’s stance “is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president’s view. . . . It’s allowing the executive to define the scope and limits of its own powers.”

I predict that this administration’s behavior will result in a seriously renewed call for a Justice Department that is more independent of political control than is currently the case, as it is clear that an executive who believes that all of the power of the branch flows from him personally cannot be fully trusted to directly control federal law enforcement, because said executive will assert the right to selectively enforce the laws. I am not sure what I think about such a move, but it certainly has tempting elements.

In regards to the specific issue on the table, and as I have pondered out loud on numerous occasions over this US Attorney firings business, if there is nothing to the story, why does the White House continually raise the stakes over the issue of simply providing an explanation? I know a lot of my readers think that this is all about a partisan witch hunt, but to me it is about providing an adequate explanation to the American public as to the behaviors of the Bush Justice Department. The executive branch works for us, and I would like the Bush administration to acknowledge that fact, but I fear no such acknowledgment will be forthcoming.

Also, to date it isn’t as if testimony before Congress on this issue has been hideously damaging to the administration. Mostly it has raised more questions than answers, but all of these gyrations make it look like the administration has something rather significant to hide. Yet, the administration and its defenders continue to argue that this is a nothing story.

I still maintain that it is ironic, and quite galling, that this administration in some of its anti-terrorism policies believes that it has the right to information on innocent citizens and takes the attitude that “if you aren’t doing anything wrong, you don’t have anything to worry about” yet asserts extreme privacy rights for itself.

Sphere: Related Content

Filed under: US Politics | |

7 Comments

  1. although ultimately the logical conclusion of the administration’s position here is that the only real c&b power that the Congress has is impeachment, as they can do that by themselves

    Congress could always go with the power of the purse and defund the Justice Department. Or how about defunding any White House lawyer that made this excessive argument?

    As for making the Justice Department more independent I think the simplest answer is making that part of the criteria voters use when choosing a candidate. Making Justice more independent, whatever that means, brings up a fear of an entire agency behaving like special prosecutors. They could become a quasi-branch of the government (with no Dick Cheney defending it).

    Comment by Sean Hackbarth — Friday, July 20, 2007 @ 10:38 am

  2. Perhaps-but on the other hand, the Fed is politically independent of the WH, and it does not seem prone to rogue behavior.

    The comparison to special prosecutors isn’t entirely apt, as those are always appointed (or, at least, typically appointed) in the context of a specific politically-charged issue.

    Comment by Dr. Steven Taylor — Friday, July 20, 2007 @ 10:42 am

  3. A deal in this situation seems unlikely to me; it implies some compromise on both ends. The administration will dig in its heels.

    The administration did offer a deal in the USA flap, a compromise, offering to have some of its officials testify off the record. It wasn’t good enough.

    I say none of that to excuse the behavior, but just to highlight that I think both sides have learned their lesson about making deals.

    Comment by Captain D. — Friday, July 20, 2007 @ 10:48 am

  4. […] “Bush to Congress: The DoJ Only Has to Prosecute the Laws that I Like (Executive Privilege Edition)” […]

    Pingback by Justice Department Will Refuse to Prosecute Contempt Charges » The American Mind — Friday, July 20, 2007 @ 11:26 am

  5. Bush should be commended for this principled stand.

    The type of public transparency that might be forthcoming with executive branch officials testifying to Congress would hurt the country, be antithetical to democracy, and embolden the terrorists.

    Congress is nothing more than a mouthpiece for Al Quaeda. Any information provided to them will wind up in the hands of the enemy.

    Comment by Ratoe — Friday, July 20, 2007 @ 1:56 pm

  6. The idea of executive privilege does not appear in the Constitution, although (IIRC), even Washington relied on the concept. But in the end, the President doesn’t have a strong legal foundation for his argument.

    OTOH, who wrote the law requiring that a lawyer from the executive branch prosecute cases that the legislature wants prosecuted? The legislature has a few lawyers of its own. Some of those lawyers were even involved in fighting the FBI investigation of a certain Louisiana congressman. Using those lawyers makes the most sense to me. And Congress can potentially re-write the law so that it can use those lawyers.

    Comment by Max Lybbert — Friday, July 20, 2007 @ 3:48 pm

  7. […] like, how can we take seriously that the President will necessarily follow his own guidelines? Sphere: Related Content Filed under: US Politics, War on Terror || […]

    Pingback by PoliBlog ™: A Rough Draft of my Thoughts » On the New Interogation Guidelines — Saturday, July 21, 2007 @ 9:18 am

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