Broader Privilege Claimed In U.S. Attorney Firings

The Washington Post reports:

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 law."

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 powers."

What Is 'Contempt Of Congress'?

The Washington Post reports:

Congress and the White House appear headed for a showdown over President Bush's decision to invoke executive privilege to deny documents to House and Senate committees and prevent former aides from testifying about the firing of U.S. attorneys.

Lawmakers, in turn, have threatened to hold subpoenaed officials in contempt of Congress.

Here are some questions and answers about the contempt of Congress process:

Q: What is contempt of Congress, and why would Congress want to use this power?

A: Congress can hold a person in contempt if that person obstructs proceedings or an inquiry by a congressional committee. Congress has used contempt citations for two main reasons: (1) to punish someone for refusing to testify or refusing to provide documents or answers, and (2) for bribing or libeling a member of Congress.

Q: Where in the Constitution does it say Congress can hold someone in contempt for not testifying?

A: It's not in the Constitution. It is an implied power of Congress, just like executive privilege is an implied power of the presidency.

Q: Is there any legal underpinning for a contempt of Congress citation?

A: Yes. The Supreme Court said as early as 1821 that without the power to hold people in contempt of Congress, the legislative branch would be "exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it."

Q: What is the process for holding someone in contempt of Congress?

A: The procedure can start in either the House or the Senate. The two chambers do not work together on contempt citations. It only takes one chamber to refer a person to be prosecuted for contempt. A contempt citation can start with a subcommittee, a full committee or in the full House or Senate.

If it starts at the committee level and a person refuses to comply with a committee subpoena, the committee has to vote to move a criminal contempt citation forward. It takes a majority vote for the citation to move to the full House or Senate.

Q: What happens next?

A: Once the full House or Senate has a contempt citation, it must be debated by the full chamber like any other resolution. It is subject to the same filibuster and procedural rules as any other House or Senate resolution. It takes a majority vote to be approved.

Once approved, the House speaker or the Senate president pro tem then turns the matter over 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," according to the law.

Q: Is the U.S. attorney required to prosecute?

A: Depends on whom you ask. The law says the U.S. attorney "shall" bring the matter to a grand jury.

However, the House voted 259-105 in 1982 for a contempt citation against EPA Administrator Anne Gorsuch but the Reagan-era Justice Department refused to prosecute the case.

The Justice Department also sued the House of Representatives, saying its attempt to force Gorsuch to turn over documents interfered with the executive branch. The court threw the case out and urged negotiation between the executive and the legislative branches. The Justice Department did not appeal the ruling, and the Reagan administration eventually agreed to turn over the documents.

Q: When was the last time a contempt of Congress citation was brought to the House or the Senate floor?

A: The last contempt of Congress prosecution was of former Environmental Protection Agency official Rita Lavelle in 1983. The House voted 413-0 to cite her for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but was convicted of perjury in a separate trial.

Q: What is the punishment upon conviction for contempt of Congress?

A: Contempt of Congress is a federal misdemeanor, punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison.

Q: Is the contempt of Congress power used often in fights between the legislative branch and the executive branch?

A: Since 1975, 10 Cabinet level or senior executive officials have been cited for contempt for failure to produce subpoenaed documents. The 10 officials are Secretary of State Henry Kissinger and Commerce Secretary Rogers C. B. Morton in 1975; Health, Education, and Welfare Secretary Joseph A. Califano, Jr., in 1978; Energy Secretary Charles Duncan in 1980; Energy Secretary James B. Edwards in 1981; Interior Secretary James Watt in 1982; EPA Administrator Anne Gorsuch, known as Anne Gorsuch Burford after a 1983 marriage, and Attorney General William French Smith in 1983; White House Counsel John M. Quinn in 1996; and Attorney General Janet Reno in 1998.

The White House and Congress came to negotiated agreements in each case before criminal proceedings could begin.

Q: Does the president's executive privilege trump Congress' contempt citation?

A: That's the big question that both sides really don't want answered. In the past, neither side has been willing to let the matter go up to the Supreme Court for fear that their side would lose.

If Congress loses, then it would have a hard time investigating future presidents, Republican and Democrat. If the White House loses, the current president and future ones can expect numerous requests from a reinvigorated Congress, whether controlled by the Democrats or Republicans.

Q: Is there anything the president can do once someone has been convicted of contempt of Congress?

A: Contempt of Congress is a federal crime like any other. The sitting president has the authority as chief executive to commute or pardon anyone of any federal crime.