The White House has just thrown Miracle-Gro on to the tenacious Constitutional confrontation between Bush and Congress over the latter's investigation into the firing of U.S. prosecutors.
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.
Go ahead and file contempt charges, the administration is saying. Under federal law, those charges can only be pursued by a U.S. attorney. And because the administration won't let the Justice Department approve such a pursuit, the charges will die from neglect.
The power-grab here is pretty astonishing. The president isn't just asserting that his invocation of executive privilege trumps Congress' power of oversight, a claim that is at least plausible; he's asserting that such invocation of executive privilege in the face of a contempt citation can never be challenged in court, because the Justice Department will simply refuse to bring the charges.
Now, this claim is currently limited to the narrow question of Congress filing contempt charges. But within that narrow scope it effectively puts the President above the law. And since contempt charges are Congress' main weapon against executive privilege claims it removes most limits on such claims.
True, Congress could still file a civil lawsuit to force a judicial decision on a specific claim. But such a decision would lack teeth. Say Congress wins its civil lawsuit, and the president still refuses to turn over documents. What recourse does Congress have? Nothing short of impeachment, with contempt charges off the table.
But beyond that, why can't the same logic be applied to any violation of federal laws that rely on the Justice Department for enforcement? Commit the crime, then forbid Justice to investigate; it's a get-out-of-jail-free card, with (once again) impeachment the only remedy.
It's also a sign of the lapdog status to which the Justice Department has fallen. Though the Bush stance rests heavily on a similar argument (pdf) advanced as part of a Reagan administration lawsuit, Reagan's White House never actually tried to carry it out. Nor was it resolved in the courts, because the Reagan administration official in question eventually agreed to give Congress the documents it wanted (pdf) — derailing the lawsuit by caving.
Rep. Henry Waxman gets the best quote on that aspect: "I suppose the next step would be just disbanding the Justice Department." But the best summation comes from Mark Rozell, a professor who wrote the book on executive privilege that accompanies this article: "It's allowing the executive to define the scope and limits of its own powers."
Hidden within here is an interesting, legitimate question. When Congress suspects wrongdoing in the executive branch, how can it be handled? Should Congress have the power to compel an investigation and prosecution of a "co-equal" branch? Probably not. Should the administration have the power to decide whether to investigate or prosecute itself? Probably not. So what's left?
The ideal situation would involve an independent prosecutorial service weighing each case on its merits, not on politics or who signs their paychecks. But it's easy to see why that might not be practical. And anyway the phrase "independent prosecutor" still sends shivers up the spines of people on both sides of the aisle.
That's why the best solution is probably current practice: Let Congress bring contempt charges; let the president invoke executive privilege; and let the judiciary sort out the winner, establishing legal tests for doing so in a consistent manner.
The audacity of the claim aside, what would happen if the president's interpretation carried the day? Not quite as much as you might think. He'd be immune from contempt charges, certainly. But that would not shield him from Congressional wrath.
For one thing, Congress could turn to its "inherent contempt" power, last used in 1934, which entails having the Sergeant-at-Arms arrest the suspect and holding a trial on the Senate floor. Sen. Patrick Leahy described the process and history of the procedure back in May 2000, during discussions about whether to subpoena Clinton's attorney general. Among other things, Dick Cheney would preside over the proceedings (unless he was forced to recuse himself for conflict of interest).
There are problems with such a course, however. Besides the archaic spectacle and huge waste of time, Bush could just pardon anyone so convicted — although there's some debate over whether his pardon power extends to contempt of Congress.
More prosaically, Congress could simply hold up funding bills, nominee hearings and any other business until the president coughs up the information it wants, as well as tying the administration up with endless subpoenas, investigative hearings and other forms of harassment. Not to mention riders specifically forbidding any use of federal funds to fight a contempt citation.
So perhaps the administration should think twice about pushing their case much further. As I argued above, Bush should invoke executive privilege and then let the courts decide if that outweighs Congressional oversight in this particular case.
Of course, the administration may be less interested in proving its case than in simply delaying it until Bush leaves office. Two executive privilege assertions, both of which will probably be appealed to the Supreme Court, may well do the trick — though Congress could petition the Supreme Court to accept the cases directly, bypassing lower courts.
For now, look for two separate constitutional questions to head to the courts. The first will be an opinion on the viability of the latest administration claim. The second (assuming the administration loses the first round) will be the underlying question of whether privilege trumps oversight in this particular case.