Bush Administration Suggests Justice Department Can Ignore Congress Contempt Charges

Once again the Bush administration is changing what has been the conventional wisdom.

You must have thought that if Congress brings contempt charges against Bush administration officials for refusing to testify (or show up) because President George Bush invoked executive privilege that under our system of government the Justice Department had to prosecute.

Not so, says the Bush administration which now effectively argues that the President’s word is The Law and Justice will do what he wants it to do.

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.

Note that the Washington Post piece reports that this is a “NEW” assertion. Once again the executive branch is seizing new powers — this time to make not just executive privilege in essence a shield to be used whenever the Congress seeks to do oversight, but also to in effect tell Congress that it has no power to prosecute anyone because the President’s word is final…not just on who appears, but on who the Justice Department can prosecute.

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.”


NOT QUITE, according to an expert quoted by the Post:

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 key question again is when conservatives, who have so cherished the way the American system of government with its checks and balances was set up, will speak out against (yet another) a major seizure of power by the executive branch.

The other question: what is Congress’ remedy? Increasingly, Bush administration actions appear to be actually provocative aimed at throwing the matter into court. Could it be because George Bush now has more friends on the Supreme Court who believe in a stronger executive and will back him in the end? If they back him, the United States traditional definition of checks and balances may have to be heavily revised.

  • pacatrue

    This is becoming a classic case in which the cover-up is a lot more troubling than the original action. The original attorney firings were just politically damaging to the administration. But the AG’s testimony to Congress, which has been contradicted several times now, and the determination that the government can simply ignore a Congressional contempt citation are far more troubling. I wonder if we are going to have to re-arrange the organization of the Justice Department soon to insitutionally have greater independence from the White House. I hope that the next President of either party will be willing to pass rules which enforce such separation, but cynical me realizes that everyone always wants more power, as long as they are the ones in power.

  • jdledell

    I am extremely troubled by this latest seizure of Executive Power. It is merely the latest in seizures from unauthorized wiretapping to signing statements etc.

    Since both Bush and Cheney are under heavy pressure with nothing left to lose, the question is how FAR will they take Executive Power? Since Bush believes he has a mandate from G-d (see David Brooks column) would he follow any congressional passed law he doesn’t want? For example, if Congress cut off funding for the War, would he simply take funds from elsewhere and continue the fight?

    I am concerned with the mental health of both Bush and Cheney. Would they use nuclear weapons? At some point, we have to seriously examine whether there is some truth in BDS.

  • RevDave

    These clowns must be stopped – where are all of the true conservatives who actually respect rule of law – hiding under their desks waiting for Dear Leader to tell them what to do.

    This country has reached a new low, and this administration is driving us down.

  • George Sorwell

    If the Congress has the legitimate authority to issue comtempt citations and subpeonas, why can’t the local sherriff’s department enforce them?

  • spanielboy

    In 17 months, the administration will be out the door and a flurry of pardons will be issued for whatever wrongs they may or may-not have committed.

  • Sam

    Congress needs to slap down the president pure and simple. Even the GOP has to see that. Bush is power mad if he honestly feels he is beyond the reach of any branch of gov’t.

  • kritter

    Bush knows Congress won’t have the guts to impeach him, and that the only other recourse they have is to try to enforce their subpoenas through the courts. That process is cumbersome, time consuming and would have an unclear outcome. He doesn’t care about his poll ratings, his VP isn’t running for anything and he seems only marginally interested in the fate of his party.

    Bush knows he’s home free.