Fight Over Documents May Favor Bush, Experts Say

By Dan Eggen and Amy Goldstein
Washington Post Staff Writers
Saturday, July 21, 2007

The Bush administration's vow this week to block contempt charges from Congress could prove to be a successful strategy for protecting White House documents about the multiple firings of U.S. attorneys, Democratic legal scholars and legislative aides said yesterday.

The experts cautioned that complaints by Democratic lawmakers about the administration's legal stance are undercut by a Justice Department legal opinion issued during the Clinton administration. It contended, as the Bush administration did this week, that Congress has no power to force a U.S. attorney to pursue contempt charges in cases in which a president has invoked executive privilege to withhold documents or testimony.

The Democrats are presently struggling to decide whether to pursue contempt proceedings against present and former White House officials for refusing to provide records and testimony related to last year's firings of nine U.S. attorneys. Several Democratic aides said yesterday that they had no immediate strategy for responding to the administration's new legal position on enforcing any contempt charges, and that Congress is severely limited in its legal options.

"Those who have been working on it for a while up here have long understood the difficulty of bringing this to a legal conclusion," said one senior Democratic aide, who added that many are hopeful the administration will eventually bow to political pressure and cooperate.

Lawmakers have two basic options for forcing a person to testify or turn over documents: They can pursue a statutory contempt citation -- which requires a U.S. attorney to submit a case to a grand jury -- or they can hold their own trial in a process known as "inherent contempt." The latter has not been used for more than 70 years, however, and is not under serious consideration by Democrats.

This week, Bush administration officials disclosed that they will never allow a U.S. attorney to pursue contempt charges on behalf of Congress, noting that the Justice Department cannot be required to act against a decision by the president.

"In circumstances like this, the constitutional prerogatives of the president make it futile and purely political for Congress to refer to a U.S. attorney a contempt citation," White House spokesman Tony Snow said yesterday. "The legislative branch is not in a position to compel action on the part of the executive branch, other than in areas related to its legitimate oversight role."

Leading Democrats and some legal experts have attacked the Bush administration's argument as too broad. Sen. Patrick J. Leahy (D-Vt.), who is weighing contempt proceedings as chairman of the Senate Judiciary Committee, said in a statement that the White House position is "another demonstration of the lawless and unchecked path the President, the Vice President and their loyal aides have taken us down."

But administration officials and other legal scholars, including some Democrats, noted that Justice Department lawyers in the Clinton administration made a similar argument during a controversy with Congress over the nomination of a federal judge.

Walter E. Dellinger III, who headed the Office of Legal Counsel at the Justice Department then, wrote in a 1995 legal opinion that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."

That conclusion echoed a broader legal opinion issued 11 years earlier by then-Assistant Attorney General Theodore B. Olson, who headed the OLC during the first term of the Reagan administration.

Dellinger and several other legal experts from the Clinton era said yesterday that the Bush administration is fundamentally correct in its assertion that lawmakers cannot force the Justice Department to pursue a course that undermines a president's prerogative, including his power to protect information through executive privilege.

"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.

Christopher H. Schroeder, a Duke University law professor who was OLC deputy chief from 1994 to 1997, said that the administration's stance "as a legal matter may leave the Democrats without an effective remedy." He described the administration's legal argument as "a little over the line, but it's not that far out there."

Schroeder said that, if Congress passes a contempt citation that the administration blocks, lawmakers still have the option of initiating a civil proceeding against White House officials, but such an action could take years to settle.

Martin S. Lederman, another Justice Department official in the Clinton administration who is a professor at the Georgetown University Law Center, said he regards a civil action as the most likely way for Congress to try to enforce its subpoenas for White House testimony and documents.

Lederman said that "every administration since the Nixon administration, in 99 percent [of the time], these things are resolved by negotiation and accommodation. This is what is different here. This looks to me as if it is going to be uncompromising all the way."

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