WSJ : Reasons to Doubt Conventional Wisdom

Reasons to Doubt Conventional Wisdom

John D. McKinnon reports on the executive privilege fight.

July 25, 2007

It’s conventional wisdom in Washington that despite all the huffing and puffing, the fight between the White House and Congress over executive privilege will get resolved, relatively quietly, with some 11th hour settlement that gives lawmakers what they want while preserving the executive’s theoretical claim. After all, that’s what has happened just about every other time the House or Senate has begun contempt-of-Congress proceedings against an executive-branch official for failure to testify over the last 30 years.

Don’t assume there’s going to be a settlement this time, though. Some smart people see this fight going to court — possibly all the way to the Supreme Court. White House officials “seem to want to get a judicial decision,” one expert in executive-privilege law told me recently.

If so, they finally got what they asked for, in today’s vote by the House Judiciary Committee to hold former White House Counsel Harriet Miers and current Chief of Staff Josh Bolten in criminal contempt. The Senate also is mulling its own contempt cases against administration officials.

At today’s White House briefing, Press Secretary Tony Snow insisted it’s no gamble to oppose the congressional demands.

“You don’t roll the dice on a constitutional principle, you stand by it,” he said, “and you do it for the sake of the institution. This is an administration that believes it is important to maintain that kind of confidentiality, knowing that if you lose it, you lose the ability to recruit the kind of people you need, to bring folks in who are going to be able to give their best advice and counsel to the president….This is about preserving the institution so it can work effectively.”

One possible reason for the administration’s seeming willingness to go to court is that Congress has allowed its legal weapons to atrophy over the years. The legal situation that now confronts the House is nothing short of awful. It’s got basically one practical option — a statutory criminal contempt citation. Unfortunately, the executive branch since the Reagan administration has taken the position that the Justice Department doesn’t have to enforce such subpoenas against the White House, when there’s a claim of executive privilege. Thus, the House is behind even before the game starts.

The Senate’s situation is somewhat better. There’s an older sanction called “inherent contempt,” where the House or Senate holds a trial — kind of like an impeachment trial — and makes the finding itself. It hasn’t been used since the 1930s because it takes so much time. But in the Senate, there’s talk of holding an inherent contempt proceeding in the Judiciary Committee, to save floor time. There’s a third kind of proceeding called civil contempt. But it’s got even more legal problems.

Another big reason for the administration’s willingness to go to court is that people like Vice President Dick Cheney believe the executive branch’s powers have been trampled in the post-Watergate, post-Vietnam (and post-Monica Lewinsky) era. They seem to think anything is better than giving in again to Congress.