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.

Guardian : House Democrats Push Contempt Citations

House Democrats Push Contempt Citations

By LAURIE KELLMAN | Associated Press Writer | July 25, 2007

WASHINGTON (AP) - House Democrats drove toward a contempt citation Wednesday against a pair of President Bush's aides who refused to answer subpoenas as a key Republican said the wiser move might be for Congress to sue over executive privilege.

Rep. James Sensenbrenner argued that a civil lawsuit in federal court would be less perilous for the balance of power between the executive and legislative branches than a constitutional fight over contempt citations against White House Chief of Staff Joshua Bolten and former presidential counselor Harriet Miers.

``I think that the White House is going to win an argument in court'' over the contempt matter, Sensenbrenner, a former Judiciary Committee chairman and senior House Republican, told the panel.

``The proper thing to do is to determine the executive privilege claim aside from who said what, who refused to submit to what, who didn't show up to subpoena,'' the Wisconsin Republican said. Instead, Congress should ``direct the general counsel to the clerk of the House of Representatives to file a civil suit,'' Sensenbrenner added.

Chairman John Conyers, did not discount that option. But he said that faced with presidential aides flouting congressional subpoenas, the House has nothing to lose by pursuing a contempt citation.

``If we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn't even have to bother to show up, where privilege can be asserted on the thinnest basis and in the broadest possible manner, then we have already lost,'' said Conyers, D-Mich. ``We won't be able to get anybody in front of this committee or any other.''

Democrats widely agreed, and the citation was expected to pass the committee on a party-line vote and be sent to the full House. A senior Democratic official who spoke on condition of anonymity said a vote by the full House would most likely happen after Congress' August recess.

The fight over the limits of executive privilege erupted after Miers and Bolten refused to comply with subpoenas compelling testimony and documents about the White House's role in the firings of U.S. attorneys. White House counsel Fred Fielding has said that Bolten, Miers and other top presidential aides are immune from congressional subpoenas under executive privilege protections.

Democrats reject that claim and had drafted for a vote Wednesday a resolution citing Miers and Bolten with contempt of Congress. That would be a federal misdemeanor punishable by up to a $100,000 fine and a one-year prison sentence. If the measure wins support from a majority of the Judiciary and the full House, it would be advanced to the U.S. attorney for the District of Columbia - a Bush appointee.

And that's as far as it's likely to go, the Justice Department said in a letter to the committee late Tuesday.

Brian A. Benczkowski, principal deputy assistant attorney general, cited the department's ``long-standing'' position, ``articulated during administrations of both parties, that the criminal contempt of Congress statute does not apply to the president or presidential subordinates who assert executive privilege.''

Benczkowski said it also was the department's view that the same position applies to Miers, who left the White House earlier this year.

Republicans said Democrats couldn't win this fight, noting the White House has offered to make top presidential aides available for private interviews about their roles in the firings. Republicans also suggested that the Democrats' rejection of the offer leaves only one reason for the dispute: politics.

``If the majority really wanted the facts, it could have had them,'' said Rep. Lamar Smith, R-Texas.

If history and self-interest are any guide, the two sides will resolve the dispute before it gets to federal court. Neither side wants a judge to settle the question about the limits of executive privilege, for fear of losing.

But no deal appeared imminent.

Contempt of Congress is a federal crime, but a sitting president has the authority to commute the sentence or pardon anyone convicted or accuses of any federal crime.

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: to punish someone for refusing to testify or refusing to provide documents or answers, and for bribing or libeling a member of Congress.

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