When Executive Privilege Becomes Executive Disdain

When executive privilege becomes executive disdain

http://www.iht.com/articles/2007/07/...ion/edbush.php

Published: July 22, 2007

The Bush administration, which has been pushing presidential power to new extremes, is reportedly developing an even more dangerous new theory of executive privilege. It says that if Congress holds White House officials in contempt for withholding important evidence in the U.S. attorney scandal, the Justice Department simply will not pursue the charges. This stance tears at the fabric of the Constitution and upends the rule of law.

Congress has a constitutional right to investigate the purge of nine U.S. attorneys last year. And there is no doubt that the investigation has unearthed improprieties: Several administration officials have already admitted illegal or improper actions involving the politicization of the country's chief law enforcement agency.

But the administration has been extraordinarily defiant toward Congress' legitimate requests for information. The low point came recently when Harriet Miers, the former White House counsel, refused even to show up in response to a congressional subpoena.

The next question is how Congress will enforce its right to obtain information, and it is on that point that the administration is said to have made its latest disturbing claim. If Congress holds White House officials in contempt, the next step should be that the U.S. attorney for the District of Columbia brings the matter to a grand jury. But according to a Washington Post report, the administration is saying that its claim of executive privilege means that the U.S. attorney would be ordered not to go forward with the case.

There is no legal basis for this obstructionism. The Supreme Court has made clear that executive privilege is not what the president claims it to be. It must be evaluated case by case by a court, balancing the need for the information against the president's interest in keeping his decision-making process private.

The White House's extreme position could lead to a constitutional crisis. If the executive branch refused to follow the law, Congress could use its own inherent contempt powers, in which it would level the charges itself and hold a trial. The much more reasonable route for everyone would be to proceed through the courts.

This showdown between a Democratic Congress and a Republican president may look partisan, but it should not. In a year and a half, there could be a Democratic president, and such extreme claims of executive power would be just as disturbing if that chief executive made them.

Congress should use all of the tools at its disposal to pursue its investigations.

It is not only a matter of getting to the bottom of some possibly serious government misconduct. It is about preserving the checks and balances that are a vital part of American democracy.