Friday, July 20, 2007

Collision course


Can you say "landmark ruling ahead"?

The White House has just thrown Miracle-Gro on to the growing 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.

LAPDOG WATCHDOG
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 described as an expert on executive privilege: "It's allowing the executive to define the scope and limits of its own powers."

LEGITIMATE ISSUE
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.

PRACTICAL EFFECTS
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.

DELAYING TACTIC
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.

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21 Comments:

Anonymous Anonymous said...

THIS is the most important thing the un-named official said:

"It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

BUT now----the Dem leadership would like to change all that. Or would they? Would they really?

Wonder if they've thought it all through.....

JP5

7/20/2007 4:05 PM  
Anonymous Anonymous said...

BTW, this entire made-up scandal is the biggest waste of time and money ever. Bottom line is the President----any president----has the authority, per the U.S. Constitution, to hire and fire U.S. attorneys as he sees fit...and FOR ANY REASON.

JP5

7/20/2007 4:19 PM  
Blogger Sean Aqui said...

Yes, you've said so repeatedly.

Me, I'd like to know if those reasons included ones I consider impermissible. Like not prosecuting enough Democrats, or prosecuting Republicans.

7/20/2007 4:37 PM  
Anonymous Anonymous said...

"Me, I'd like to know if those reasons included ones I consider impermissible. Like not prosecuting enough Democrats, or prosecuting Republicans."

But that's witch hunting when you have no evidence to even make such a charge. And with ALL the numerous Republicans who have been investigated during this Bush administration...I dare say you don't have a case.

JP5

7/20/2007 6:31 PM  
Blogger Sean Aqui said...

There's more than enough evidence to warrant further investigation. It's not witch hunting or a fishing expedition, as long as the probe is properly narrow and specific.

7/20/2007 8:22 PM  
Anonymous Anonymous said...

What is the EVIDENCE that warrants further investigation. Specifics.

JP5

7/20/2007 9:28 PM  
Blogger Sean Aqui said...

The unusual (indeed, almost unprecedented) nature of the firings; the conflicting accounts of the reasons for the firings; the troubling correlation between a U.S. attorney taking certain actions (prosecuting Reps, failing to prosecute Dems) and their being added to the "consider for firing" list.... all the things like that.

7/20/2007 10:01 PM  
Anonymous Anonymous said...

Bill Clinton fired ALL 93 of them at once--which was considered very unusual. In fact, one of them..U.S. Attorney Jay Stephens... was investigating the all-power Chairman of the House Ways & Means Committe,Democrat Dan Rostenkowski. Stephens said he was within one month of making "a critical decision with regard to resolution." Republicans charged that Clinton fired all 93 in an effort to disrupt some of the investigations of certain Democrats. This is something that the news media does not care to mention today. Even George Stephanopolous who reported on the current flack did not bother to bring up the same kind of flack that was prevalent during his and the Clinton administration back in March of 1993---which BTW, he defended.

Republican administrations don't believe it's the right thing to fire all at once---but rather to replace them if and when a replacement becomes available. So, we're talking procedure only here. In other words, while Republicans are WILLING to keep Democrat appointees in place during their administration UNTIL they might find a replacement----Democrat President's don't seem to want to entertain the idea of having ANY former Republican appointees in place. And that's the difference. The ONLY difference.

JP5

7/21/2007 11:23 AM  
Blogger Tully said...

What is the EVIDENCE that warrants further investigation. Specifics.

Translation to Sean's answer--Democrats don't like it, just as they don't like anything this Repubican president does. There is no substantive evidence of criminal wrongdoing or malfeasance, just of political appointments being treated politically. Wow, what a shock.

The "nature" of the firings is irrelevant, a BS chatter point absent substantive evidence of criminal wrongdoing or active malfeasance. It is 100% within the legal and constitutional and statutory perogatives of the executive, not within the purview of Congress to second-guess. How long has this been so? Since the Judiciary Act of 1789 that established the office of United States Attorney. (Pay attention to that, as we'll come back to it.) Dems want to score points off the admin AND dictate admin policies and actions. See Constitution, re: separation of powers.

the troubling correlation between a U.S. attorney taking certain actions (prosecuting Reps, failing to prosecute Dems) and their being added to the "consider for firing" list.

What correlation? Once again, this boils down to "because Democrats don't like it." At best it adds up to an objection to the use of policy in exercising prosecutorial discretion, which is an inherent function of the office of USA. Indeed, it's part of the definition of the office. Any Dems prosecuted is too many, any Republicans not prosecuted are too many, the actual occurence of crime in the policy emphasis area is discounted, and any variance from strict quota-by-party prosecution (and even that) is held up as "evidence of wrongdoing." In short, Dems want to score points AND dictate admin policy to favor themselves. See Constitution, re: separation of powers.

The hiring and firing of USA's and all internal discussions pertaining thereto are EXACTLY the kind of internal policy and personnel discussions protected by executive privilege. "Suspicion" and "we wanna dictate to the other branch of government" are insufficient cause to breach that barrier. You need a showing of criminality.

Absent that showing of criminality, of deviance from the actual Constitutional perogatives of the executive, what we have is a power grab not by the executive, but by Congress, demanding the right to assume a co-equal or superior position with the executive in the Constitutional functions of the executive. Turn it around--what if the Department of Justice demanded the right to review all internal discussions in Congressional offices, solely on their own whim, without warrants or subpoenas from the judicial branch, using solely administrative subpoenas issued without findings of cause, on simple partisan-motivated claims of "suspicion?" Uh huh. That's exactly what Congress is doing.

Now, as to Congress's powers of subpoena. As PatHMV pointed out several months ago, the subpoena power derives from the same source as executive privilege, the inherent powers of the institution.

Congress has only two bases for exercising that power--as a legitimate function of the legislative power, and the exercisement of impeachment powers. There is NO "oversight" justification for Congress blatantly interfering with the executive's exercise of its own constitutional powers, as is so oft and loudly proclaimed. So what grounds are they really using here?

There is no ongoing impeachment investigation, which leaves the legislative function. How is attempting to breach executive privilege in the executive's legitimate exercise of Constitutional functions justified by the legislative function?

I told you we'd get back to the Judiciary Act of 1789. As the USA offices are created by that 218-year-old statute, and not by the Constitution itself, they are (arguably) "inferior officers" of the United States even though appointed with the advice and consent of the Senate, and the Constitution provides that Congress "may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

In JA 1789, Congress vested the appointment of USA's in the President, with the "advice and consent" of the Senate, while leaving the firing of same entirely in the hands of the President. The Senate's pretext for this inquiry is that they are considering if they should by legislation change that two-century-plus-years old statute to shift the appointment authority to the judiciary, and deprive the executive of the sole right to fire.

So tell me again--just who is engaged in a power grab here? It's not the executive. By the very nature of the Senate subpoena power, to exercise it in the fashion they have is to assert that they are considering removing statutory powers from the executive, powers that have been exercised by the executive for over two hundred years.

The executive, whether it be Bill Clinton or George Bush or whomever, any party, any era, is duty-bound to resist encroachments on the powers of their branch of government by another branch. Any Prez who won't is a weenie.

7/21/2007 12:37 PM  
Anonymous Anonymous said...

Good post, Tully! And what's more----this thing will take at least another 18 months to settle IF the Dems pursue it. After all, their real plan is to continue to tie up this administration in its remaining months! That means....EVEN if it was to get settled in their favor----it would hurt the next President, possibly a Democrat. That's why look for this to happen: to make sure it doesn't get ruled in their favor, the Dems will finally give up just before Bush leaves office....if not before. They'll have some wormy reason. Just wait. There is NO WAY they want for a future Democrat president what they want for this one. No way.

JP5

7/21/2007 1:23 PM  
Blogger Tully said...

That's exactly why, barring some substantial and credible evidence of actual criminality, the courts have generally tossed out these kinds of cases where obviously applicable executive privilege is involved. They toss 'em and say "it's a political issue, not a criminal one." And they're right. The "aggressor" almost always tries to cast the fight in criminal terms, but it's blatantly political out of the gate here.

That's also why a compromise is almost always reached--the two branches LIKE having that gray area to play in for political purposes. No one really wants to try to force exact delineations in there unless they KNOW their side will win, as the cost of losing is the loss of that part of the gray area forever.

Bush offered a ompromise equal if not more generous than is customary, and was rebuffed. Being on pretty solid ground as far as the EP assertion goes, he then told Leahy & Co. to stuff it. Rightly so--just as Clinton was correct in many of his assertions of EP. (Clinton also abused EP, but not all his uses were abuses. See the Espy case for an example.)

It would be nice if the Democratic-led Congress would start actually doing something other than demagogue. They're in a position to actually get some things done that are not all that resisted by either side, but instead they spend their time rabble-rousing and wing-stoking.

7/21/2007 2:32 PM  
Anonymous Anonymous said...

Your last comment is exactly right. They ARE in such a position----but are throwing it away instead.

JP5

7/21/2007 4:26 PM  
Blogger Sean Aqui said...

Tully: I don't think the question is whether a law was broken.

There are two separate issues here: the action being investigated, and the clash between privilege and oversight.

I've always thought it was legal for Bush to fire the prosecutors; what's at issue is whether it was proper. And what's at stake isn't a prison term, it's political embarassment.

To quote from an earlier post of mine on the topic:

"Legally, he may be right. So far, Congress has not uncovered any criminal wrongdoing, and I don't think they're likely to. The attorneys do, after all, serve at the pleasure of the president. Firing them for sleazy reasons may be sleazy, but it's not illegal.

But ethically and politically, he's dead wrong. Ethically, the firings have undermined the independence, impartiality and morale of U.S. attorneys as a group -- something the attorneys themselves have been rather pointedly telling Gonzales. Politically it's just stupid, because the defense doesn't satisfy the understandable desire to believe our justice system is impartial."


I support an investigation, then, to find out if the attorneys were fired for sleazy reasons. And I expect the recourse to be political, not legal -- though I can imagine Congress trying to pass some statutory measures to insulate U.S. attorney's from political pressure.

That's the action question. The issue then becomes whether Bush's invocation of executive privilege to prevent investigation of that question trumps Congress's oversight powers. It might; it might not. But I think the question should be put to a court, even if that court ends up saying "not my problem; you guys work it out."

7/21/2007 5:26 PM  
Anonymous Anonymous said...

"And what's at stake isn't a prison term, it's political embarassment."

Sounds like you're admitting this is all about trying to embarrass the president. If so, I totally agree.

YOU and apparently Leahy and others think what Bush did was "sleazy." Well guess what??? What Clinton did in 1993 was thought to be sleazy as well by many Republicans. It's simply political and nothing more.

This is the kind of thing that goes back and forth----depending on who the President is. I doubt very seriously if the Democrat leadership wants to curtail the powers of the next Democrat president. In fact, I'm sure of it.

JP5

7/21/2007 8:43 PM  
Blogger Sean Aqui said...

Sounds like you're admitting this is all about trying to embarrass the president.

I'm saying that the issue is a political one, not a legal one.

YOU and apparently Leahy and others think what Bush did was "sleazy."

I haven't rendered that judgment. I think there's enough evidence to investigate further, that's all.

What Clinton did in 1993 was thought to be sleazy as well by many Republicans.

Every president fires the prosecutors when he takes office. Even President Bush. All Clinton did was do it quickly, not wait until all of their terms were up. That's hardly a radical departure.

Whatever else it was, Bush's move was unusual from a historical perspective. That doesn't make it illegal, of course, but it makes it noteworthy.

7/21/2007 9:31 PM  
Blogger Tully said...

Go back to basics, Sean. What is EP for? What is the standard for asserting EP? What is the standard for overcoming it?

If we were talking about criminality, the assertion of EP would be much weaker, and justiciable. But we're not. We're talking about a policy dispute at best, and a witch hunt at worst. A policy dispute is not justifiable cause to breach privilege--but that's what Leahy is demanding.

The courts have traditionally treated subpoenaed executive-branch materials claimed as privileged as being presumptively privileged, and required a showing sufficient to rebut that presumption. "Because we don't like him and fervently desire to harass and embarass him" is not a good showing to overcome that presumption. Nor is "Because we want to."

"The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." --US v. Nixon

The bottom line is that the courts are highly unlikely to back Congress on this one, simply because it IS a political catfight, and not a criminal investigation, however much Leahy would like to make it otherwise in the public mind. The likely outcomes are two--stalemate, if the court refuses to rule (and they've done that before) or victory for the executive.

Leahy knows this--he's not an idiot. I expect we'll see a grumbling acceptance of the original (and completely traditional) compromise first offered by the White House--if the White House doesn't just tell them to STFU and practice some solitary sex.

7/21/2007 10:44 PM  
Blogger Chris said...

Of course, Congress has no intention of pushing this to the courts. They are posturing, to keep the pressure on the administration. One way of looking at it is that the Democrats are not trying to win the next election.. They are trying to win the next 10. The rhetoric is specifically designed to relegate the Republican party back to near permanent minority status.

7/22/2007 5:09 PM  
Anonymous Anonymous said...

"Leahy knows this--he's not an idiot."

Are you absolutley SURE about that??? I think he's an idiot.

7/22/2007 5:22 PM  
Blogger Sean Aqui said...

Tully: First, note that I've made a partial retraction in my follow-up post.

But mostly, we largely agree on broader things. I'm not arguing that EP trumps oversight or oversight trumps EP; I recognize that that's a situational judgement.

All I'm saying is that Bush should claim privilege, Congress should claim oversight, and we should let a court decide who's right.

If the court punts, so be it. Then it becomes a political squabble, with the remedies and tactics I've mentioned above.

We disagree on two matters:

1. While recognizing that U.S. attorney's are political appointees, they are an important cog in the functioning of the Justice system, and we are justified in wanting them to be politically impartial, even as they pursue the law-enforcement priorities of the administration.

Thus, I think that when indications of strong political interference emerge, it deserves to be investigated. Even if the only punishment is political embarassment for one side or the other.

The relative merit of the president's EP claims is a techinical detail that speaks to process, not whether there should be an investigation or not.

2. Because I put such weight on the impartiality of justice, I'd like to think that the courts would consider that a significant factor in determining whether Congress can exercise oversight authority in this matter. I admit that might have more basis in personal desire rather than legal precedent, and I recognize that it might open up a can of worms that the courts would be wise to avoid -- particularly because there are political remedies avaialable. Still, I think such a concern strengthens Congress' hand in this case.

BTW, considering Bush has tried to make plain that he wasn't involved in the discussions over which attorneys to fire, what do you make of the argument that this weakens his EP claim, inasmuch as its difficult to privilege communications that the President didn't engage in?

7/23/2007 10:05 AM  
Anonymous Anonymous said...

"1. While recognizing that U.S. attorney's are political appointees, they are an important cog in the functioning of the Justice system, and we are justified in wanting them to be politically impartial, even as they pursue the law-enforcement priorities of the administration."

Does this mean that Bill Clinton should not have replaced the Arkansas U.S. Attorney who was working on Whitewater with an Attorney friend of his???

"Bush has tried to make plain that he wasn't involved in the discussions over which attorneys to fire, what do you make of the argument that this weakens his EP claim, inasmuch as its difficult to privilege communications that the President didn't engage in?"


Where does it say to invoke EO the President had to personally be involved in the discussions at hand?

JP5

7/27/2007 8:29 PM  
Blogger Sean Aqui said...

Much of the rational for executive privilege is that the president needs to be able to get frank, candid advice from his advisers, and he can't get that if those advisers know their words can be made public at any time.

But the key is "advice to the president." It's why executive privilege generally doesn't cover internal communications at federal agencies outside the White House.

If the president was not involved at all, it's hard to see how the documents involve qualify. But I'm not an executive privilege expert, hence the question.

7/28/2007 8:46 AM  

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