Bush to Congress: Try and Make Me

Democratic lawmakers seeking documents touching on the controversial dismissals of nine U.S. attorneys are contemplating contempt charges against recalcitrant White House officials. Bring it on, says the Bush administration, but don't expect the executive branch to help. That's a problem, because the usual procedure in cases of congressional contempt is for the speaker of the House or the president of the Senate to refer the matter to the appropriate U.S. attorney, "whose duty it shall be to bring the matter before the grand jury for its action." Not gonna happen, says President Bush, via an unnamed "senior official" quoted by The Washington Post:

A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case. 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.

This is similar to the position taken by the Reagan administration in 1984, after the House voted to cite EPA head Anne Gorsuch for contempt because she refused (based on the Justice Department's instructions) to turn over information about Superfund litigation. "Following the Gorsuch contempt," notes the Congressional Research Service in a 2003 report (PDF), "the Office of Legal Counsel wrote an opinion…concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President's decision to invoke executive privilege."

Mark J. Rozell, a professor of public policy at George Mason University, tells the Post this doctrine, now revived by the Bush administration, is "astonishing," "a breathtakingly broad view of the president's role in this system of separation of powers" that amounts to "saying the president's claim of executive privilege trumps all." By contrast, David B. Rifkin, a former Justice Department lawyer under Reagan and Bush I, "praised the position and said it is consistent with the idea of a 'unitary executive,'" reflecting the reality that "U.S. attorneys are emanations of a president's will."

I don't like the sound of that. Under this theory, could the president also block the prosecution of an official who, say, tortured a prisoner or conducted illegal surveillance, if the president determined that such measures were necessary, proper, and constitutional tactics in the war on terrorism?

Such issues will not be resolved anytime soon. I'll go out on a limb and predict that the current confrontation, like the one with Gorsuch and every other showdown over documents reviewed by the CRS report, will be resolved without any actual prosecutions for contempt. After some more posturing, the administration will give Congress the information it wants while insisting it really doesn't have to.