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.So basically the president is saying the Justice Department can't do what Congress tells it to do once he's proclaimed executive privilege. It's a legalistic way of saying "Up Yours."
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."
A couple of thoughts come to mind. First, I'm trying to imagine the thermonuclear reaction this would have caused among the Republicans and the wingnutosphere if President Clinton -- or any Democratic president, for that matter -- had tried to assert this level of executive privilege. Pennsylvania Avenue from the Capitol to the White House would have been littered with the bloody remnants of exploded heads of Republicans and all the punditry who would proclaim that Mr. Clinton is a rogue and a charlatan and all sorts of other Victorian terms that they dredged up from the Newt Gingrich list of naughty words.
The second thought is that this, along with the Iraq war funding, will be the true test of the Democrats in the Senate and the Congress. If they don't stand up and fight back with all the forces they can muster and make every attempt to win this battle, then there is little hope for them. All of the energy that they put in to winning the election in 2006 and all of the effort they're putting in to winning back the White House and a larger majority in the House and Senate won't mean anything.
It's clear that Mr. Bush and his administration are calling out the Democrats -- and anyone else who believes in the balance of power -- to defend the role of Congress and its equal place in our nation. If they don't rise to the challenge, we might as well just give up now and let the comfortable numbness of dictatorship and one-party rule lull us gently to our doom because we don't deserve to have our republic any longer.
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Read Glenn Greenwald's detailed and eloquent discussion of this issue.
