Norman J. Ornstein
The tug of war between Congress and the White House over witnesses and documents is getting more interesting and more tense. The White House, under counsel Fred Fielding, has issued a blanket ukase saying no U.S. attorney will prosecute or carry forward any contempt charge brought by Congress where executive privilege has been declared by the president. The White House cited the Reagan administration, re: the Ann Gorsuch case, for a similar opinion. Walter Dellinger, solicitor general in the Clinton administration, rallied to the Bush White House's defense on this issue, using his own experience and legal judgment.
But to me, a careful reading of what Fielding said confirms what scholar Mark Rozell, the leading living expert on the history of executive privilege, concluded in the Washington Post: "That's a breathtakingly broad view of the president's role in this system of separation of powers. What this statement is saying is the president's claim of executive privilege trumps all."
The tug of war between Congress and the White House over witnesses and documents is getting more interesting and more tense.
If we take every assertion of executive power by this White House as breathtaking, we would all need to take oxygen tanks with us wherever we go. Last week, in another display of arrogance, the administration brushed aside without any explanation the request by Rep. Peter DeFazio (D-Ore.) for access to the classified elements of two recent presidential directives on the role of the White House and the Department of Homeland Security in preserving the continuity of government following a devastating terrorist attack. (DeFazio, by the way, is a member of the House Homeland Security Committee.)
Why? We don't know, but it is hard to think of a good and defensible reason.
Of course, the White House has its defenders who say executive privilege does, in fact, trump all and that the president can do anything he wants with U.S. attorneys. Executive power acolyte David Rifkin applauded the ukase and said federal prosecutors are "emanations of a president's will."
Hmm. Let us imagine that a president orders a U.S. attorney to bring charges of child molestation--or to make a public announcement of an investigation into allegations of such--against the president's opponent a week before the election. Or suppose the president, or the attorney general, had ordered one of the prosecutors to drop murder charges against a supporter of the president. Or imagine a U.S. attorney, aware that he or she was on a list of potential firees, decided to abandon or ignore clear Justice Department guidelines about bringing prosecutions for election fraud right before Congressional or gubernatorial elections. (OK, that last one doesn't require much imagination.)
Would those actions, taken by U.S. attorneys who are emanations of the president's will, be kosher? Of course not. Would they be off-limits for Congressional investigations? Of course not. Would documents or testimony about such outrageous abuses of presidential and prosecutorial power be off-limits to Congress because the president cited executive privilege? According to Fielding and Rifkin, apparently yes.
Neither the contempt power of Congress nor executive privilege are explicit in the Constitution. Both are implied powers exercised early and often. Both are subject to debate and negotiation in terms of their applicability and limits, and both have been tested and constrained in some ways by the courts. Most cases of dispute have been settled by negotiation between the branches; some of those cases were recounted by me in an earlier column. But we clearly are dealing with a White House in no mood to compromise, rejecting any reasonable plan to interview or question White House officials privately, with at least a transcript.
In the case of contempt, Congress began early in its history to protect its ability to compel testimony to it by private citizens and executive officials by arresting and jailing--in the Capitol--those who refused to cooperate. The first case dates to 1795. The Supreme Court in 1821, in Anderson v. Dunn, recognized Congress' inherent power but noted that the power was limited to "the least power adequate to the end proposed," and the court limited imprisonment, saying it could not last beyond the adjournment of Congress. Congress passed a statute in 1857 to allow longer terms of imprisonment as well as allowing it to turn contempt cases over to the courts for indictment and trial, with penalties including fines of "not more than $1,000 nor less than $100" and imprisonment "in a common jail of not less than one month nor more than twelve months."
The practice in the 20th century, at least, has been to turn cases over to the Justice Department to handle and allow the courts to intervene if the case involved a tension between legislative and executive prerogatives; 1934 was the last time Congress used its inherent power and handled the prosecution of a contempt case itself. Perhaps this game of chicken will end as most others have, including most cases involving the Republican Congress and the Clinton administration--with negotiations. Probably not. Rozell has said the White House stance in this case "is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president's view. . . . It's allowing the executive to define the scope and limits of its own power."
Perhaps it is time for Congress to dust off its rusty inherent contempt power, reopen the Capitol hoosegow, get some of the Capitol Police's finest, and put a couple of people behind bars for a few days or a bit longer to show that there is indeed recourse here--that the blanket assertion of executive privilege and untethered executive power just does not wash.
Norman J. Ornstein is a resident scholar at AEI.