Rethinking “Collision Course”
By Sean Aqui | Related entries in General Politics, Law, NewsMore opinions are starting to roll in over President Bush’s assertion that Congress cannot pursue contempt charges in cases where the president invokes executive privilege. Plus I’ve had 24 hours to think it over. And it appears I overreacted a little bit yesterday.
It’s deeply offensive on the face of it for the administration to essentially say “we control the prosecutors, and we won’t use them on ourselves.” It’s also deeply offensive to claim that the president and the president alone determines whether executive privilege applies, and that the judiciary had no authority to rule on such a decision. That is what Bush seemed to be saying.
But it appears that the administration’s opinion is strictly limited to contempt proceedings, and to a narrower part of such proceedings than I thought. And in that context, all they’re saying is that the Justice Department cannot be forced to undermine a valid presidential invocation of privilege. As Walter Dellinger, a Justice Department official under President Clinton who made a similar argument in 1995, puts it:
“Congress can determine what’s unlawful but not determine who should be prosecuted,” said Dellinger, who is now a Duke University law professor. “It’s an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid,” a matter that he said would have to be adjudicated on its merits in the courts.
Which in the end echoes my position on the matter: Bush should claim privilege, Congress should claim oversight, and let a court decide who wins.
One reason I thought the president’s claim was too broad was framed by a question: What happens if the court rules against the president and he still refuses to turn over the documents? If he cannot be held in contempt, what penalty is there with which to enforce the ruling?
We’ve got some answers there, too. Besides the political remedies I mentioned yesterday, the key concept is that the Justice Department cannot be used to undermine a valid claim of executive privilege. But if the claim is rejected, it becomes invalid. And if the president still refuses to cooperate, presumably the Justice Department could be used to compel his cooperation.
So let’s move past this distraction and get on to the real meat of the matter: a court ruling on the competing constitutional claims.
This entry was posted on Saturday, July 21st, 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 23rd, 2007 at 12:03 pm
“Executive Privilege” vs. “Contempt of Congress” Cage Match!
In a world where people are more excited about the final volume of Harry Potter than the President’s latest exploits, it’s often hard to know what I should be blogging about. Shiny things distract me. (I read the whole Potter book yesterday.) As Vold…