Collision course
By Sean Aqui | Related entries in General Politics, Law, NewsThe 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.
(continued over at Midtopia)
This entry was posted on Friday, July 20th, 2007 and is filed under General Politics, Law, News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
July 20th, 2007 at 9:31 pm
And nothing is going to happen. Because in spite of the clear message sent in the 2006 vote, this Congress just can’t find the spine to stand up to Bush & his minions of evil.
July 20th, 2007 at 11:32 pm
Is the title to this post an oblique reference to US v. Nixon:
July 21st, 2007 at 10:33 am
And today there’s a column examining the power of Congress to hold people in civil contempt all on its own, without ever involving the Executive branch. As in, send the Sargeant at Arms down, arrest whoever is refusing to testify, provide documents, etc., and lock them up until they comply.
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001802.html?hpid=opinionsbox1
As you can see, there are lots of precedents to suggest that the Supreme Court (even, or perhaps especially, those justices on the conservative end of the current Court) would uphold the Congress. IF Congress goes that route, and I suspect they may, Bush has escalated a battle that he will almost certainly lose.
July 21st, 2007 at 11:10 am
Dos: I could only wish to be so subtle. Just great minds thinking alike….
WJ: Yep, I discuss that in the full post over at Midtopia.
I tend to agree that Bush is likely to lose if the confrontation goes to court, but it’s by no means certain. Especially because the issue involves the hiring and firing of political appointees. The court *could* rule that the president can use any criteria — or none at all — in such firings.
Given the special nature of U.S. attorneys, I would hope the courts wouldn’t green light blatant politicization of the justice system. But they might, choosing to follow logic out the window.
July 21st, 2007 at 1:09 pm
Hate to disagree, but I think Bush will win for the political appointee issue, as you point out Sean, and the hiring/firing of U.S. prosecutors could have a fairly strong national security nexus (especially considering the fuzzy legalities of the WOT). For instance, a U.S. attorney refuses to prosecute a terrorism case so he is fired. Divulging information about the reason for his firing might be classified.
July 21st, 2007 at 4:57 pm
Dos: If it’s settled that way, I’ll understand. I still think there’s a problem when the president can basically refuse to investigate himself or his administration, but I can understand a court deciding it’s a political question, not a legal one. And Congress will still have weapons: impeachment, withholding funding, that sort of thing.