Contempt for the democratic process

Even Nixon didn't try this...

By NEIL A. LEWIS and DAVID JOHNSTON
July 21, 2007
New York Times

WASHINGTON, July 20 — The Justice Department would be likely to block any efforts by Congressional Democrats to seek contempt charges against present and former White House officials for refusing to give information to Congress, a White House spokesman said Friday.

Congress and the White House have been moving toward a constitutional confrontation over the administration’s invoking executive privilege to prevent any testimony about its role in last year’s dismissal of federal prosecutors.

A White House spokesman, Tony Fratto, said Congressional threats to have presidential aides charged with criminal contempt would probably end in failure. “It has been the Justice Department’s long-held view that the law does not permit Congress to require a U.S. attorney to convene a grand jury or otherwise pursue a prosecution” when someone refuses on the basis of executive privilege to testify or turn over documents, Mr. Fratto said.

The administration’s warning that contempt citations would fail is the latest salvo in an escalating legal clash between the White House and Congress and appears intended to discourage Democrats in Congress from pursuing the charges against White House officials.

The administration sought on Friday to tamp down suggestions that a crisis was looming. “Obviously there are a number of steps that would have to occur before we reached a juncture where such a legal position could be considered,” said a senior Justice Department official who spoke on condition of anonymity because he is not authorized to talk about legal strategy in this case.

Mr. Fratto said he hoped the issue could still be resolved by accommodation. “We still don’t believe it needs to come to this,” he said, repeating the White House’s offer to allow aides to meet informally with lawmakers and to allow Congressional investigators to review White House documents in private.

Democrats have rejected the offer. They have dropped demands that presidential aides provide sworn testimony in public, but they have insisted on transcribing the interviews and they want wider access to documents than the White House has been willing to give.

The assertion that the Justice Department could thwart a contempt effort underscored a larger White House strategy to stake out a tough stance in its face-off with Congress, but one that could be modified later. Most confrontations over the refusal by presidents or their aides to provide information to Congress have ended with some sort of compromise.

A Democratic staff aide in Congress called the White House comments “a trial balloon,” which was supported by the fact that they first came Thursday evening from an unnamed official whose remarks were reported Friday in The Washington Post.

A former United States attorney for the District of Columbia, Joseph E. diGenova, said that by suggesting that any contempt efforts would be blocked by the Justice Department, the administration was “making it clear that this is not going to be an easy road for Congress to go and the president will use all his powers to make it difficult for them.”

Administration officials have cited a 1984 internal legal memorandum written by the Justice Department when Congress sought to charge a Reagan administration official with contempt. The memorandum concluded that a United States attorney was not required to bring a contempt charge if requested to do so by Congress. In addition, the memorandum said that contempt of Congress would not apply to an executive branch official “who asserts the president’s claim of executive privilege.”

Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said any effort by the White House to block the federal prosecutor from bringing a contempt citation on behalf of Congress would demonstrate the very problem Congress was seeking to investigate: whether federal prosecutors have been subjected to political influence.

“This administration has consistently chosen to stonewall Congressional oversight attempts, and this latest decision to interfere with those checks and balances is deeply disturbing,” Mr. Leahy said.

Underlying the discussion is the awkward procedure Congress would normally use to hold someone in contempt. Under most circumstances, Congress would have to ask the federal prosecutor in Washington to convene a grand jury and consider indicting on contempt charges any official who refused to respond to Congress’s requests for information or testimony. But the officials who have refused to cooperate — Harriet E. Miers, the former White House counsel, and Joshua B. Bolten, Mr. Bush’s chief of staff — have declined to do so because the White House has invoked executive privilege.

In addition, Sara M. Taylor, a former White House political director, refused to answer several questions when she appeared before the Senate Judiciary Committee, also citing executive privilege.

Congress has another route to enforce its will, an inherent power of contempt. But that has not been used since early in the 20th century. It has long been deemed unwieldy in the modern era as it entails Congress stopping all work to hold its own trial and imprisoning any offenders in the basement of the Capitol.