The Bush Administration announced yesterday it will ignore demands from Congress to issue contempt indictments for officials the president has ordered not to testify. Dan Eggen and Amy Goldstein report on the front page of today’s WaPo:
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.
On its face, that hardly seems bold at all. It’s rather axiomatic that the head of the executive branch would decline to have his subordinates file charges against people for doing what he has ordered them to do. It would be an absurd outcome, indeed, were an official to follow the president’s orders and then be arrested by that president’s men for doing so.
There’s a wee problem, however:
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.”
So, it would appear Congress has taken this matter out of the president’s discretion.
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.”
Essentially, the administration is claiming that the law is unconstitutional and daring Congress to get a court order deciding the question. Apparently, it’s never been decided because, in the handful of cases where the matter has come up, a deal has been struck between the administration and Congress rendering the controversy moot.
Steve Benen is amazed by “how truly radical” this is. “Let’s cut to the chase: the president and his team are arguing that once the White House claims executive privilege, there is no recourse. The president is accountable to literally no one — not the Congress, whose subpoenas can be ignored, or the federal judiciary, which can’t hear a case that cannot be filed.”
But the president is merely refusing to issue criminal indictments. There are other ways to get a case to court. Orin Kerr guesses, “after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process.”
Jacob Sullum, under the amusing post title “Bush to Congress: Try and Make Me,” wonders, “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?” Well, yes. He could do that under any theory of executive power I’ve ever heard of.
Similarly, Steven Taylor entitles his post, “Bush to Congress: The DoJ Only Has to Prosecute the Laws that I Like.” But, ultimately, isn’t that always the case?
The executive branch, whether at the federal, state, or local level, always has discretion over how to execute the law. Local beat cops decide whom to arrest or issue a citation and whom to let off with a warning or ignore altogether. Mayors decide to suddenly enforce antiquated laws because they’re getting complaints from the voters about something or another. Heck, Rudy Giuliani made his reputation as a law and order guy by cracking down on squeegie men and others committing minor offenses. At the federal level, Democratic and Republican presidents use their discretion to order their Justice Department to increase or decrease emphases on enforcement of whole classes of criminal activity.
Still, as Radley Balko observes, the implications in the specific controversy are stark, “This administration is essentially saying that it and it alone determines when the people who work for it have broken the law, and no other branch of government has any say in the matter.” It’s not quite saying that, though, merely that it is a co-equal branch with Congress and that it won’t have its claims of executive privilege trumped by congressional fiat. Presumably, as Orin Kerr noted, Congress could force the issue through civil litigation.
There are, of course, other recourses. As Balko notes, there’s always impeachment. Less drastically, as Mark Kleiman points out, the Congress can use the power of the purse to make things difficult for the administration. Further, as Taylor suggests, this may increase pressure to distance the U.S. Attorneys from the political process, making them independent of the president. As I argued months ago, that would be a good thing for a variety of reasons.
Both sides are playing political hardball here. The administration is, I think, wrong on the merits here: It seems to me Congress has every right to conduct oversight into these issues and the executive privilege claims strike me as weak.
Ultimately, the Supreme Court should step in and decide this. Congress should file a civil injunction to compel the U.S. attorney for the District of Columbia to empanel a grand jury in these matters. If the president intervenes, there will be a case in controversy, which SCOTUS should fast track. The other branches will then abide by that ruling. If the Court rules against the president and he refuses to obey, Congress will almost surely impeach him.
UPDATE: Marty Lederman offers no opinions on the merits of the administration’s claims has some interesting background on what he terms a “contestable conclusion.”
UPDATE: Glen Greenwald has an extensive and generally persuasive essay on the “rule of law” implications at stake here. Ultimately, though, it comes down to a hypothetical:
The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.
It seems reasonable that, if the executive and legislative branch have limits to their authority — and they do — that the “weakest branch” should also have such limits. Beyond impeachment, though, there’s not much remedy given in the Constitution for perceived overreach since, indeed, the very power of judicial review is extra-Constitutional. Andrew Jackson once famously challenged the Court to enforce its orders and FDR threatened to expand the size of the Court and pack it with sympathetic Justices, so the question is hardly new.
Regardless, though, for the president to refuse to carry out an order from the Supreme Court, especially one in a case brought by Congress against him, would create a Constitutional crisis. The remedy, though, would be simple: Impeachment. That, ultimately, is the constraint on an overreaching executive. Short of that, the branches are merely exercising their invitation to struggle, a practice which goes back to the days of George Washington’s administration.
