Attorney Controversy is About Politics, Not Law
By Kimberley Strassel
July 27, 2007
A president removes a U.S. attorney, and Congress demands to see privileged files related to the firing. The president refuses, noting that "these suspensions are my executive acts," and "based upon considerations addressed to me alone." The Senate has a meltdown, arguing it has oversight authority over the removal of administration officials and threatens to censure the attorney general.
If this sounds familiar, it shouldn't, since it's the story of a long-forgotten battle that President Grover Cleveland fought with Congress in 1885. One reason it is long-forgotten is because nothing happened. The Senate was steamed that Cleveland wouldn't cough up the docs, but it also recognized there were limits on its power. It never did hold any officials in contempt, never did take any judicial action. Instead, it confirmed Cleveland's new choice for the U.S. attorney position.
What a difference 122 years makes. Democrats are conducting an insincere probe into President Bush's firing of U.S. attorneys, but these days they see no constitutional reason why the White House shouldn't cooperate in their partisan attack. In response to the administration's refusal to respond to subpoenas, the House Judiciary Committee this week voted to issue criminal contempt citations against Chief of Staff Josh Bolten and former White House Counsel Harriet Miers.
Chairman John Conyers is spinning the line that his party had no choice, but was forced into this by a recalcitrant president who is eviscerating Congress's oversight authority. If you believe that, Mr. Conyers also has a Capitol building to sell you. The contempt citations are, rather, an audacious break with history and Mr. Conyers has far more honorable options. The reason Democrats haven't pursued those more dignified routes is because this is about smearing the president, not proving a principle.
Let's remember how we got here. Democrats latched on to the firings in hopes of building some case that the White House had engaged in cronyism and cover-up. The Justice Department, in the spirit of cooperation, turned over 8,500 documents and made available a parade of officials for public testimony. Mr. Conyers and his counterpart at Senate Judiciary, Patrick Leahy, found nothing. So they then demanded the White House turn over privileged communications and submit high-ranking officials to public questioning. Mr. Bush invoked executive privilege, and Mr. Conyers went to Defcon contempt.
This is a constitutional issue, but you don't have to be Robert Bork to get your head around it. The Founders created three separate (but equal) branches of government. The Constitution gave each their own powers, while also supplying checks to prevent the branches from encroaching on each other.
Congress gave itself the right to issue criminal contempt citations long ago, and bully for it, but there's nothing in legal history to suggest that in this case it has the right to apply that power to the president or his subordinates. It'd be one thing if Mr. Conyers had proved beyond doubt that a crime had been committed. He hasn't. Instead, this is a straightforward battle between Mr. Bush's claim of executive privilege and Congress's claim of oversight. Both sides, in theory, have a legitimate case.
So the idea that Congress now gets to win this battle by simply declaring the other side criminal is bizarre. Under that twisted logic, Mr. Bush has just as much right to grant himself a similar power and hold Mr. Conyers in criminal contempt for interfering in executive-branch business. This is not, obviously, a very grown-up way of settling constitutional disputes.
Fortunately, we do have a means for arbitrating fights between the branches. If Messrs. Conyers and Leahy think the White House is wrong to refuse to comply with Congress's subpoenas, they can file a civil legal proceeding in court. The judiciary will then decide just how far Mr. Bush's assertion of executive privilege extends in this case, and either force the White House to turn over the information or tell Congress to back off. It's not complicated.
It is, however, a lengthy process, and therefore doesn't fit in with Democrats' agenda of pushing the attorneys question now, to inflict maximum political damage in the run-up to the 2008 election. Undoubtedly the other reason Mr. Conyers hasn't pursued a civil case is that his legal staff has informed him that he has a very poor chance of winning. Legal precedent strongly suggests that Mr. Bush's assertion of executive privilege is valid here, given this case revolves around a purely presidential power--the right to nominate or remove his U.S. attorneys.
Mr. Conyers, of course, has yet another honorable option: to take up the White House on its offer of making top officials available for questioning in private, and not under oath. If it's truth he's after, Mr. Bush has offered to give it to him. But agreeing to that compromise would spoil the political melodrama. Instead, Democrats see criminal citations as kicking off another cycle of headlines. They might even harbor the long-shot hope that they can gin up enough political pressure to get the administration to cave. The White House has instead stood firm and vowed to never allow the Justice Department to pursue congressional charges. This is legitimate; legal opinions from the Clinton and Reagan administrations, and most experts, agree Congress has no power to force a U.S. attorney to pursue contempt charges when a president has invoked executive privilege. Mr. Conyers surely knew all this, but didn't let such trifling legal concerns stop him from holding his high-profile citation vote.
And what happens when the administration does block? Back in 1999, Congress was debating a criminal contempt citation against Attorney General Janet Reno. In several statements, none other than Mr. Leahy (who has recently been threatening to hold in contempt any Bush official who looks at him the wrong way) explained to his colleagues that it was useless to issue a citation because no U.S. attorney was "likely to pursue compliance" against a president who had asserted executive privilege. He said instead that the only real option open to Congress would be to hold its own "trial on the Senate floor," but warned that any such "spectacle" would "be an embarrassment to this institution."
What a difference eight years makes. There's now talk in the Senate of holding an "inherent" contempt proceeding--or precisely such a spectacle--in Mr. Leahy's very own judiciary committee. Democrats seem only too happy to continue turning this attorneys probe into an event, so long as they think it might inflict some political damage on their opponent in the White House. Ole Grover never knew how good he had it.
Ms. Strassel is a member of The Wall Street Journal's editorial board.
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