WILL EPA Administrator Anne M. Gorsuch be spending Christmas in a jail cell? The House of Representatives, furious at the administration's refusal to produce certain documents subpoenaed by congressional subcommittees, has voted to cite Mrs. Gorsuch for contempt of Congress and asked the U.S. attorney to begin criminal prosecution. This is really a kill-the- messenger approach, since the decision to withhold the documents was made by the White House, but it is Mrs. Gorsuch whose name appears on the subpoena, and she's the one Congress proposes to have fingerprinted and thrown in the pokey for not complying. Does this sound like a reasonable way to settle a thorny, longstanding constitutional dispute between the executive and legislative branches?
The tale of the EPA administrator is just the latest chapter in a long saga about the doctrine of executive privilege. The courts have held that the president may, in certain limited cases, assert the claim and properly deny access to internal executive communications. In every recent administration, officials have run into congressional demands that presidents refuse to meet. In the Carter Cabinet, it was HEW Secretary Joseph Califano and Energy Secretary Charles Duncan who faced contempt charges. More recently, it was Interior Secretary James Watt. But in the past, disputes have been compromised reasonably, usually at the last minute, and a decision by the full House was avoided. In this case, however, the proceedings against Mrs. Gorsuch have been accelerated so that the matter could come before the lame-duck House that is about to adjourn.
On Nov. 22, the House subcommittee on investigations and oversight of the Public Works and Transportation Committee issued a subpoena calling upon the administrator to produce "all books, records, correspondence, memorandums, papers, notes and documents drawn or received by the Administrator and/or her representatives since December 11, 1980" concerning 160 separate hazardous waste disposal sites. EPA then produced or made available for copying some 787,000 pages of documents at a projected cost of about $223,000 and more than 15,000 personnel hours. The White House however, ordered the administrator to withhold another 74 documents on the grounds that they contained sensitive material involving the government's strategy in prosecuting law violators.
Within hours of the House vote to seek prosecution of Mrs. Gorsuch for failure to produce these 74 documents, the Justice Department filed a civil suit asking the court to enjoin the criminal proceeding against her and to settle the question of the disputed papers in a civil proceeding. This makes sense. What is needed here is a calm and considered judgment from impartial sources on the merits of the White House's claim. If the documents do contain, for example, lists of potential witnesses, tactics and strategy the government intends to use in law enforcement proceedings or outlines of potential terms for settling cases, it is reasonable to ask that they remain confidential so as not to jeopardize prosecutions. If the executive's objections are frivolous or merely self-protecting, the courts can order that the documents be produced. Proceeding in a criminal case against Mrs. Gorsuch will not, she assures us, produce the documents, it will just put her in jail.
If it were not for the determination of the House to act before adjournment, this case would probably have been settled by compromise as other similar disputes have been. Let's hope the courts can resolve this conflict without jailing high government officials and that sensible and permanent guidelines are devised for handling these all-too-frequent power struggles between the executive and legislative branches.