In an escalating confrontation with Congress, the Reagan administration announced yesterday that it does not plan to prosecute Environmental Protection Agency Administrator Anne M. Gorsuch for contempt of Congress, as directed by the House of Representatives in a lopsided bipartisan vote Thursday.
Instead, Justice Department officials said yesterday, they have asked a U.S. District Court judge to declare the House action unconstitutional and an intrusion on executive privilege to withhold information from Congress.
The request came in a lawsuit filed by Justice Department attorneys and provoked an immediate and angry reaction from several House leaders, who accused the administration of "stonewalling" and flouting the law.
The House voted 259 to 105 to hold Gorsuch in contempt after she refused, under orders from President Reagan, to turn over to a House subcommittee certain legal documents on her agency's cleanup efforts at 160 of the nation's most dangerous hazardous-waste dumps.
Although the full House has never before held a Cabinet-level official in contempt, federal law says that the U.S. attorney for the District of Columbia has a "duty . . . to bring the matter before the grand jury." If tried and convicted, Gorsuch could be fined up to $1,000 and sentenced to up to a year in jail.
However, U.S. Attorney Stanley S. Harris joined Justice Department officials yesterday in filing suit against the House of Representatives in an effort to block prosecution of Gorsuch. Thus, the case against Gorsuch will not go to a grand jury until the civil dispute over the limits of executive privilege is resolved, Justice Department officials said.
"It is our position that prosecution is inappropriate and unlawful," said a high-ranking Justice Department official who briefed reporters on condition that he not be identified. "It would be a terrible dereliction of office to prosecute under those circumstances."
The lawsuit uses several of the arguments Justice had invoked in advising Reagan and Gorsuch to defy the House subpoena for the EPA documents. It argues that the subpoena is too broad, that the subcommittee has not demonstrated a need for the documents and that the papers are too important to law enforcement efforts to be released.
The Justice Department official said the administration will turn over the documents if it loses the lawsuit, but he predicted that the case would be appealed, possibly to the Supreme Court, since this is the first time Congress has attempted to press criminal contempt charges on the issue of executive privilege.
Meanwhile, House leaders vowed to press forward with efforts to obtain the documents, reacting angrily to what they called an unprecedented legal situation -- a lawsuit pitting the United States of America against the House of Representatives of the United States of America.
House Speaker Thomas P. (Tip) O'Neill Jr. (D-Mass.) yesterday forwarded the contempt citation to Harris for prosecution and, in a meeting with House Republican and Democratic leaders, called on House legal advisers to challenge the Justice Department lawsuit, according to two officials who were present.
"The Justice Department has placed itself in the unethical position of advising Mrs. Gorsuch to withhold the documents and, now, stonewalling their responsibilities under the law of the land," said Rep. Elliott H. Levitas (D-Ga.), chairman of the House Public Works subcommittee that issued the subpoena to Gorsuch and brought the contempt citation against her.
Stanley Brand, general counsel to the clerk of the House, and Kirk O'Donnell, general counsel to the speaker, yesterday called the Justice Department arguments "defective" and "seriously flawed." They said the courts have often held that Congress cannot be sued for legislative acts.
The impasse grew from an investigation by Levitas' subcommittee into the EPA's enforcement of the 1980 federal law that mandated cleanup of the nation's most hazardous waste dumps. The law created a $1.6 billion fund -- known as the Superfund -- to finance cleanups and to finance prosecution of companies for illegal waste-dumping.
Levitas and other subcommittee members said they needed to review sensitive law enforcement records in order to know whether the agency was moving quickly enough to clean up the dumps. They also said they had information suggesting that EPA had not assessed high enough fines against several companies involved in illegal dumping.
However, EPA officials, under advice from the Justice Department, invoked executive privilege in refusing to turn over documents that they called "enforcement-sensitive." These papers, Gorsuch and others argued, came from open law enforcement files and could not be released without jeopardizing potential prosecutions.
That standoff led to the subpoena for all legal records on the 160 dumps designated by EPA as priorities for cleanup with the Superfund. Administration officials said the subpoena would require EPA to produce more than 780,000 pages of documents at a cost of about $223,000, a figure disputed by Levitas and other committee members.
Gorsuch said yesterday that the agency is withholding only a small fraction of its files, including legal memos outlining the strengths and weaknesses of the government's case against certain companies, lists of potential witnesses and enforcement strategy papers.
Nonetheless, both Republicans and Democrats view the administration's stance as interference with Congress' duty to see that its laws are carried out. Fifty-five Republicans joined 204 Democrats in voting for the contempt citation.