White House Says Hill Can't Pursue Contempt Cases
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.
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. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.
"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."
The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."
[Always observant Representative Henry] Waxman added: "I suppose the next step would be just disbanding the Justice Department."
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."
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."
It gets more clear every day. Impeach.