Contempt charges can't be prosecuted against White House
Broader Privilege Claimed In Firings
White House Says Hill Can't Pursue Contempt Cases
By Dan Eggen and Amy Goldstein
Washington Post Staff Writers
Friday, July 20, 2007; A01
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
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
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."
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 the
stance, 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
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
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
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
Research editor Alice Crites contributed to this report.