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Contempt charges can't be prosecuted against White House

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  • Greg Cannon
    http://www.washingtonpost.com/wp-dyn/content/article/2007/07/19/AR2007071902625_pf.html Broader Privilege Claimed In Firings White House Says Hill Can t Pursue
    Message 1 of 1 , Jul 20, 2007

      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
      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."

      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
      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 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.
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