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.