President Bush Tells Congress, Because I Said So: Ann Woolner
By Ann Woolner
July 24 (Bloomberg) -- The beauty of the White House's latest claim about executive privilege is its simplicity. All President George W. Bush has to do is utter those two words and his underlings can ignore congressional subpoenas without fear of jail.
Why? Because the president says so. Who decides whether the claim is constitutional or bogus? He does. Who can challenge it? Nobody.
No check. No balance. No way to bring in a judge. See? Simple.
Of course, it's not so popular with Congress.
To ``block that claim from being litigated is an outrageous position,'' says Stanley Brand, former general counsel to a Democratic-controlled House when Ronald Reagan fought Congress over executive privilege.
In recent months, the White House and Congress have been shoving each other about, arguing over who gets to order whom around. At last week's close, the administration had escalated from pushing to delivering a sharp slap on the face.
The Justice Department proclaimed that the law that makes everyone else vulnerable to criminal prosecution for defying a congressional subpoena doesn't apply when the president chants the magic words over his aides.
``We believe the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive-branch official who asserts the president's claim of executive privilege,'' reads a 1984 Justice Department memo that the department began re-circulating to reporters last week.
A Flimsy Basis
Under this theory, it doesn't matter how flimsy the basis for the executive privilege claim, as no one outside the White House can attempt to shake it. It's okay for Bush to extend it to cover advisers, ex-advisers and advisers to advisers. His lawyers say he can spread his magic dust over them all.
For everybody not working for the president who may be tempted to withhold from Congress testimony or documents, either chamber can vote to hold them in contempt of Congress.
When that happens, the matter goes ``to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action,'' the law says.
Note the words ``duty'' and ``shall.''
Lawmakers tend to think it a good idea to enforce their subpoenas with the threat of prosecution. Anyone convicted of contempt of Congress could spend up to a year behind bars.
Presidents, on the other hand, don't usually like it when their staff is hauled over to Capitol Hill under threat of jail to chat about matters they would rather keep secret, for whatever reason.
Reagan Administration
So 23 years ago, lawyers at Reagan's Justice Department opined that the law governing the prosecution of congressional nose-thumbers doesn't apply to administration employees when the president invokes the privilege.
``The president, through a United States attorney, need not, indeed, may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege,'' the Office of Legal Counsel at Justice wrote.
That is a tough statement. It's one thing to offer executive privilege as a defense when charged with contempt. In that case a judge would decide whether the privilege was rightly invoked and whether it trumps Congress's need for information.
But the memo is saying that the case shouldn't get created in the first place. The adviser shouldn't be charged, which makes it impossible for a court to rule.
The Justice Department opinion says that neither Congress nor the courts can ``require or implement the prosecution of such an individual.''
New Life
The 1984 memo got new life in the administration of Bill Clinton, who invoked privilege on matters personal as well as presidential. A judge ruled against him when he tried to keep his sex life and his lies hidden from a prosecutor.
Still, the question of whether Congress can force the prosecution of a presidential aide obeying a president's claim of privilege is up in the air.
And no court has said the White House can stop a prosecutor from prosecuting someone accused of being in contempt of Congress.
The Justice Department ``is not simply the mouthpiece for the president,'' Brand points out. ``It's the sovereign's lawyer as well.''
We are a long way from testing this in real life.
But if the House insists on a contempt citation, and if the White House insists it is immune, Congress's options are limited.
It could file a lawsuit, which would take too long to resolve to do anyone any good. And it may not be possible to frame the case in a way that would lead to an eventual ruling on the merits, anyway.
`Inherent Contempt' Power
There is an option the president can't take away from lawmakers. Congress has ``inherent contempt'' powers, which means that it can order the arrest of whomever it finds in contempt, bring them to Capitol Hill for trial and jail them if they are convicted.
This hasn't been done for 70 years, as it's a nasty process. That is why Congress wrote into law a different route: prosecution through the Justice Department.
But if the White House takes away that option, maybe Congress will use the only means it has left.
(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)
To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net .
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