You have to love this administration and its tendency to push the boundaries of the Article II powers beyond its limits. Just a couple of weeks ago we were debating whether the vice-president is an executive branch official and today the administration handed Congress a whopper--that an executive privilege claim trumps a contempt of Congress complaint. I am still puzzled over the administration's strategy.
The Congress, as you recall, has moved on a contempt of Congress claim against former White House Counsel Harriet Miers and White House chief of staff Joshua Bolten for their role in the Justice Department attorney firings. The new Congress had moved to uncover why these select US attorneys were fired, amid allegations that their removal came as a result of their unwillingness to play ball when asked to go soft on Republicans under investigation and to pursue Democrats who were not. When they refused, they were fired, or so the allegation goes. The administration first advanced a constitutional argument that the president may hire and fire whomever he chooses. The only caveat is that the Senate gets to confirm many of those who are hired, but on the firing question, the president's role is nearly absolute. Why not totally absolute? Because their is a political process that is also occurring that can either support or attack the president's argument--and to the American public, and the Congress--firing just a few of the 94 attorneys looked suspicious. So the administration fell back to another constitutional position--assert executive privilege, which closes the investigation into Executive Branch matters. But it is also not absolute, and most recently the Supreme Court has not looked kindly on broad claims of privilege.
This brings us to today. When Congress votes a contempt citation, it is up to the U.S. Attorney for D.C. to prosecute the citation. But the U.S. Attorney comes under the direction of the attorney general, who comes under the direction of the President of the United States. And the President has told the U.S. Attorney that he may not bring this charge forward. So what can be done?
We are not in uncharted waters. Back in 1983, the Congress was investigating the EPA director Anne Gorsuch-Burford and her lack of enforcement of Superfund violations. The Congress believed that the Reagan administration was purposefully not pursuing environmental abuses as a payback to corporate contributors, something the administration denied. The Congress wanted internal memos sent between Gorsuch-Burford and the White House, which the White House refused to provide. When Burford-Gorsuch was brought before a House Committee, she claimed executive privilege over the memos and Congress responded with a contempt citation, making her the first high ranking official ever to be charged with contempt of Congress. The Congress turned over the citation to the U.S. Attorney in D.C. and the DoJ refused to act on the citation. Instead, DoJ decided to file a civil lawsuit asking the federal district court to throw the case, reasoning that the executive privilege claim trumped the contempt citation (sound familiar?). The case, U.S. v House of Representatives was dismissed under the "Political Questions" Doctrine, arguing that it is inappropriate for the Judiciary to settle disputes between the Article I and II branches of government (these cases are a no win for the federal judiciary, which is really why they bow out).
However, the Congress (and the media) beat the administration up as acting above the law, and once public heat got too intense, the administration backed away and made a compromise where the Congress got to review the memos, but in private and without staff or the ability to take notes. Again, the political process trumped the claim of constitutional prerogative.
In the current case, the Congress would do well to blow the dust off the Burford-Gorsuch controversy and use the political process to mediate the constitutional controversy. The Congress can also turn up the heat by refusing to fund the DoJ--or cutting off any funds for the DoJ to pursue the case against the Congress. But that should come after the Democrats have brought supernova heat against the Bush administration, which will cause a loss of Republican support in Congress as well as outside of D.C. One interesting caveat. The administration, should it decide to take this to court, knows that it won't be around when the case is finally decided. It could be thinking about dumping a mess into the lap of the next president, who, given the way the money has been flowing, might very well be a Democrat. Just a thought.
