Democrats vs. President Bush: To the courts or not, and how?

McClatchy NewspapersJuly 29, 2007 

WASHINGTON — Threats of criminal contempt rained down on the White House from Congress this week. Plus a subpoena for Karl Rove. And calls for a special prosecutor.

With each passing day, the dispute over whether President Bush can claim executive privilege to shield his aides from a congressional investigation into last year's firing of nine U.S. attorneys creeps closer to court. The two elected branches of government appear determined to push this dispute into a full-scale confrontation over the limits of their constitutional powers, and it may be that only the unelected branch can declare a winner.

This week even several Republicans who don’t consider the firings improper — including Senate Minority Whip Trent Lott of Mississippi and Rep. James Sensenbrenner of Wisconsin, a former chairman of the House Judiciary Committee — said the executive privilege question is a matter the courts should decide.

If the Democrats in charge of Congress commit to a court fight, they have a handful of options under criminal or civil law, or even legislation, but some are farfetched and none is a slam-dunk winner.

The House of Representatives, with its larger Democratic majority, could pursue those options one at a time or simultaneously. It could act with or without the Senate, where the Democrats’ 51-49 majority would make anything requiring a vote of the full body subject to a Republican filibuster.

Which course to take, and when, are under review now mostly in back-room deliberations involving Democratic lawmakers, staff counsels, private-sector lawyers and university scholars.

“For Congress to do nothing strikes me as a dangerous precedent itself, because it would suggest in future cases that the executive branch can basically forestall serious oversight through coercion,” said Steve Vladeck, an American University law professor whom Democrats are consulting. “I don’t like the idea that one branch can basically scare the other one off.”

But with little precedent and thin legislative jurisdiction over how the president can hire and fire his appointees, Congress' case looks weak to many experts.

“If they were serious, they would have filed by now,” said David Rivkin, a constitutional lawyer who worked at the Justice Department under Ronald Reagan and President Bush’s father. “Fundamentally, they’re not interesting in litigating this. They’re interesting in making it a political spectacle.

“I very much expect them not to go to court because they well understand they may lose," Rivkin said. "And in any case, the very fact of going to court would make it much more difficult to command the media attention. The story then would be, ‘You filed the papers, let’s wait for the initial rulings.’ It would be months and months of nothing to write about.”

Some calculations are political: Will voters support a court fight, or would they prefer that Democrats drop the matter to focus on the war or the economy? Some are legal: If a 5-4 Supreme Court that leans toward Bush shoots Congress down, would that set a precedent that weakens the legislative branch?

Some lawmakers believe there are enough weak points in the president’s privilege claim — and enough at stake — to make a legal challenge worthwhile.

“My personal feeling is that we should take it as far as it goes and get the question answered so we’re not guessing,” said Sen. Sheldon Whitehouse, D-R.I., a former U.S. attorney.

“If the answer isn’t satisfactory to us, we can change the laws, change the rules and figure out what the best way to address it is. The posturing back and forth has not proven effective or helpful to the American people who want to know what the heck is happening in the Department of Justice.”

Congress’ seven-month investigation into the fired U.S. attorneys has produced suspicions but no proof that the ousted prosecutors were targeted because they rebuffed Republican demands that they bring weak voter-fraud cases against Democrats or because they mounted corruption investigations of Republicans.

The administration denies any wrongdoing, but maintains that Congress has no compelling interest to see internal White House deliberations on the matter.

The Justice Department has turned over thousands of documents and had top officials, including Attorney General Alberto Gonzales, testify. But no one has answered who decided which prosecutors to fire and why. Democrats say that must mean the White House was calling the shots.

The testimony has indicated that Bush wasn't involved. Democrats say that could weaken his privilege claim.

Rivkin and others say that Congress’ biggest problem is that it probably doesn’t have a right to know why the administration fired certain prosecutors and replaced them with other ones. Other than the Senate’s power to confirm or reject U.S. attorney nominees, Congress has virtually no say in the matter.

Congress’ options for challenging Bush include:

— Criminal contempt. The House Judiciary Committee initiated contempt proceedings this week against White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers for rebuffing subpoenas. The full House could vote on the contempt matter in the fall.

Experts think it’s unlikely that any court would force the Justice Department to take such charges to a grand jury or appoint a special prosecutor. And the Justice Department, citing briefs from the Reagan and Clinton administrations, said it doesn’t believe that the contempt of Congress law applies to executive branch employees acting on what they believe to be legitimate orders from the president.

— Lawsuit for declaratory judgment. Several legal experts said this is probably Congress’ least contrived route.

While the court rejected a Senate case against the administration during Watergate, post-Watergate changes to rules governing federal lawsuits appear to give Congress the standing and jurisdiction to sue over the executive privilege question in federal court.

Congress could ask the courts to enforce the subpoenas or ask the court to rule on the validity of the president’s privilege claim. Or Congress could sue over a side issue that the White House might have a weaker case for shielding, such as staff e-mails about the U.S. attorney firings sent on Republican Party e-mail accounts.

But while Congress probably can bring the case, the law doesn’t require the courts to decide it.

One case experts look to for guidance is from 1983, when the executive branch sued the House to try to pre-empt a criminal contempt case involving the Environmental Protection Agency. The court kicked the conflict back to the executive and legislative branches to work out, and a compromise was reached.

If courts did agree to take a case from Congress, there's no guarantee that judges would agree that Congress’ legislative need for documents and testimony outweighs the president’s right to receive unfettered advice from his aides.

— Civil contempt. This is a power Congress carved out in 1978 to try to enforce subpoenas through courts on state government officials or corporate officials, short of criminal contempt.

There are two hurdles that are probably insurmountable, however, experts said: The Senate’s civil contempt law exempts executive branch employees. And the House doesn’t have a civil contempt statute.

—“Inherent” contempt. Congress has the authority to conduct its own contempt trials and act as the jury. But any conviction could last only through the duration of that two-year Congress and couldn't compel the release of documents or testimony. Also, the last time it was used was in 1934, on a private lawyer, not White House aides.

The prospect of a congressional sergeant-at-arms arresting former White House Counsel Miers, holding her in custody somewhere on Capitol Hill, and Congress trying her is unlikely.

“It’s unseemly to some people to do that,” said Stanley M. Brand, a former House Democratic counsel. “It’s also more cumbersome.”

— Legislation. Congress could pass legislation requiring the courts to consider challenges to executive privilege, or it could try to beef up its oversight powers on executive personnel matters. But to do either, lawmakers would need a veto-proof majority.

2007 McClatchy Newspapers

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