Redstate

And Hysterical Reactions To The Same

By Pejman Yousefzadeh Posted in Policy — Comments (4) / Email this page » / Leave a comment »

Much gnashing of teeth has been caused by this story, which indicates a broad interpretation of Presidential power on the part of the Bush Administration, an interpretation that has caused much discomfiture and anger in quarters were Administration opponents congregate:

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. 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."

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

There are a lot more statements like those of Professor Rozell, all basically stating that the Administration's stance on this issue means the end of democracy. Or something.

However, not a soul directly or indirectly disputes the interpretation of the Reagan-era memo referred to in the excerpt above. And what's more, when legal experts from both sides of the partisan divide take a look at the Bush Administration's stance, they seem to think that the Administration has a point.

Read on . . .

The Bush administration's vow this week to block contempt charges from Congress could prove to be a successful strategy for protecting White House documents about the multiple firings of U.S. attorneys, Democratic legal scholars and legislative aides said yesterday.

The experts cautioned that complaints by Democratic lawmakers about the administration's legal stance are undercut by a Justice Department legal opinion issued during the Clinton administration. It contended, as the Bush administration did this week, that Congress has no power to force a U.S. attorney to pursue contempt charges in cases in which a president has invoked executive privilege to withhold documents or testimony.

[. . .]

Leading Democrats and some legal experts have attacked the Bush administration's argument as too broad. Sen. Patrick J. Leahy (D-Vt.), who is weighing contempt proceedings as chairman of the Senate Judiciary Committee, said in a statement that the White House position is "another demonstration of the lawless and unchecked path the President, the Vice President and their loyal aides have taken us down."

But administration officials and other legal scholars, including some Democrats, noted that Justice Department lawyers in the Clinton administration made a similar argument during a controversy with Congress over the nomination of a federal judge.

Walter E. Dellinger III, who headed the Office of Legal Counsel at the Justice Department then, wrote in a 1995 legal opinion that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."

That conclusion echoed a broader legal opinion issued 11 years earlier by then-Assistant Attorney General Theodore B. Olson, who headed the OLC during the first term of the Reagan administration.

Dellinger and several other legal experts from the Clinton era said yesterday that the Bush administration is fundamentally correct in its assertion that lawmakers cannot force the Justice Department to pursue a course that undermines a president's prerogative, including his power to protect information through executive privilege.

"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.

Christopher H. Schroeder, a Duke University law professor who was OLC deputy chief from 1994 to 1997, said that the administration's stance "as a legal matter may leave the Democrats without an effective remedy." He described the administration's legal argument as "a little over the line, but it's not that far out there."

So in fact, there is a great deal of authority to recommend the Administration's position. What's more, that authority spans different administrations--both Republican and Democratic. And as there was no hue and/or cry when the Clinton Administration came to the same conclusions the Bush Administration did about Congress's power--or lack thereof--to compel the U.S. Attorney for the District of Columbia to pursue contempt charges against Executive Branch employees who invoke executive privilege, it is more than a little puzzling that there should now be a hue and cry about the Bush Administration's adoption of the same position.

What's more, it is not like Congress is without remedies in this situation. The first linked article buries the lede, but there is a traditional Congressional method by which it can enforce contempt citations:

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney in the District.

Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.

Inherent contempt is--predictably enough--described by the mighty Wikipedia. The exercise of the inherent contempt power was held as valid by the Supreme Court in Jurney v. McCracken. And of course, merely because Congress has not employed its inherent contempt powers since 1934 does not mean that it cannot do so again. Indeed, it would appear that the inherent contempt power is the perfect check and balance against Congress's lack of line authority when it comes to ordering U.S. Attorneys to bring up contempt of Congress charges against executive branch members who invoke executive privilege or have it invoked on their behalf by the President.

Additionally, Georgetown law professor Marty Lederman--no Administration fan, he--has another remedy that Congress can consider:

Martin S. Lederman, another Justice Department official in the Clinton administration who is a professor at the Georgetown University Law Center, said he regards a civil action as the most likely way for Congress to try to enforce its subpoenas for White House testimony and documents.

So in sum, we see that Congress is certainly not without remedies here. The divine right of kings is not being asserted on the part of the Bush Administration. The Administration's claims--claims that were advocated by both Democratic and Republican predecessor administrations--do not hem Congress in unjustifiably. We should stop thinking that they do.