-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: July 20, 2007 10:46:00 AM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED],
[EMAIL PROTECTED]
Subject: Constitutional Crisis over Power of President; White House
Summons "Top Gun"
Broader Privilege Claimed In Firings
White House Says Hill Can't "Legally" Pursue Contempt Cases
By Dan Eggen and Amy Goldstein
Washington Post, July 20, 2007; A01
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/19/
AR2007071902625.html
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
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."
The administration's statement is a dramatic attempt to seize the
upper hand in an escalating constitutional battle with Congress,
which has been trying for months, without success, to compel White
House officials to testify and to turn over documents about their
roles in the prosecutor firings last year.
The Justice Department and White House in recent weeks have been
discussing when and how to disclose [their legal position], and the
official said he decided yesterday that it was time to highlight it.
Yesterday, a House Judiciary subcommittee voted to lay the
groundwork for contempt proceedings against White House chief of
staff Joshua B. Bolten, following a similar decision last week
against former White House counsel Harriet E. Miers.
The administration has not directly informed Congress of its view.
A spokeswoman for Rep. John Conyers Jr. (D-Mich.), the Judiciary
Committee's chairman, declined to comment . But other leading
Democrats attacked the argument.
Senate Majority Leader Harry M. Reid (D-Nev.) called it "an
outrageous abuse of executive privilege" and said: "The White House
must stop stonewalling and start being accountable to Congress and
the American people. No one, including the president, is above the
law."
Sen. Charles E. Schumer (N.Y.) said the administration is
"hastening a constitutional crisis," and Rep. Henry A. Waxman (D-
Calif.) said the position "makes a mockery of the ideal that no one
is above the law."
Waxman added: "I suppose the next step would be just disbanding the
Justice Department."
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.
In defending its argument, administration officials point to a 1984
opinion by the Justice Department's Office of Legal Counsel, headed
at the time by Theodore B. Olson**, a prominent conservative lawyer
who was solicitor general from 2001 to 2004. The opinion centered
on a contempt citation issued by the House for Anne Gorsuch
Burford, then administrator of the Environmental Protection Agency.
It concluded: "The President, through a United States Attorney,
need not, indeed may not, prosecute criminally a subordinate for
asserting on his behalf a claim of executive privilege. Nor could
the Legislative Branch or the courts require or implement the
prosecution of such an individual."
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.
The Bush administration has not previously signaled it would forbid
a U.S. attorney from pursuing a contempt case in relation to the
prosecutor firings. But officials at Justice and elsewhere say it
has long held that Congress cannot force such action.
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."
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 authority on executive privilege, said the
administration's stance "is Nixonian in its scope and breadth of
interpreting its power. Congress has no recourse at all, in the
president's view."
"This is allowing the executive to define the scope and limits of
its own powers."
Research editor Alice Crites contributed to this report.
---------------------
**"Prominent conservative lawyer" Theodore B. Olson
... served as an Assistant Attorney General in the Reagan
administration before returning to private practice as a partner in
the Washington, D.C. office of his former law firm. While serving
in the Reagan administration, Olson defended President Reagan
during the Iran-Contra affair.
While he was in private practice, Olson first gained notoriety for
defending convicted spy-for-Israel Jonathan Pollard . Olson
appealed to United States Court of Appeals for the D.C. Circuit
claiming that during Pollard's trial, the life sentence he received
was in violation of the plea bargain agreement, which had
specifically taken life off the table. Olson also argued that in
violation of said plea bargain, that was grounds for a mistrial.
The Court of Appeals voted 2-1 that no grounds existed for a mistrial.
Olson successfully represented presidential candidate George W.
Bush in the Supreme Court case Bush v. Gore, which effectively
determined the final result of the contested 2000 Presidential
election.
Immediately afterwards he was nominated to the Office of Solicitor
General by President George W. Bush and took office on June 11, 2001.
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