Lawyers for the legislative branch of government faced off yesterday against lawyers for the executive branch in a historic confrontation, asking the judicial branch to decide the limits of executive privilege.
Environmental Protection Agency Administrator Anne M. Gorsuch was cited for contempt of Congress in December, after she refused to turn over documents to a House subcommittee investigating her agency's efforts to clean up hazardous waste dumps.
Assistant Attorney General J. Paul McGrath, arguing on behalf of Gorsuch yesterday, called the House action an "unwarranted burden on executive privilege" and an "interference with the executive's ability to carry out the laws."
McGrath asked U.S. District Court Senior Judge John Lewis Smith Jr. to declare the House action unconstitutional and to uphold the president's power to invoke executive privilege when the administration is involved in law enforcement.
The House, in turn, has argued in court papers that, without the documents, it cannot fulfill its own constitutional duty to see that the 1980 "superfund" law governing the cleanup of hazardous waste dumps is being administered properly.
Under federal law, U.S. Attorney Stanley S. Harris normally would ask a grand jury to indict Gorsuch on charges of criminal contempt. But the Justice Department, acting in the name of the United States, sued the House, also acting in the name of the United States, to block the criminal proceedings. Harris told Congress he would not act until the lawsuit is resolved. The Justice Department argued that Gorsuch, acting under a direct order from President Reagan, acted properly in withholding documents that revealed EPA strategies in litigation against polluters. The department argued that disclosure of those strategies would impair the executive's constitutional duty to enforce the law.
At the first hearing yesterday in the increasingly bitter standoff, Stanley M. Brand, general counsel to the clerk of the House, argued that Judge Smith should not intervene. The propriety of Gorsuch's action should be settled in her criminal trial for contempt, he said.
Brand asked Judge Smith to dismiss what he called the Justice Department's "ill-founded" civil lawsuit to block that criminal trial.
The Supreme Court, in the historic case of U.S. vs. Nixon, ruled for the first time in 1974 that presidents are entitled to claim executive privilege in certain circumstances, but the court did not specify when such claims were valid. In that case, the court rejected former president Richard M. Nixon's claim that executive privilege protected his Watergate tapes from subpoenas.
Brand focused his arguments yesterday on the legality of Justice's civil suit against the House to stop prosecution of Gorsuch.
The specific issue before the court yesterday, Brand said, was the House's request that the Justice Department civil lawsuit be dismissed so that the criminal prosecution could proceed.
"This is nothing more than an attempt to usurp" the powers of the House and have a court declare the law, which allows criminal prosecutions of those found in contempt, to be "null and void," Brand said. The Justice Department cannot legally sue Congress, Brand argued, because representatives have constitutional protection from such lawsuits under the "speech and debate clause."
Brand said the department's claim of "unprecendented interference" if the documents were disclosed publicly was not valid because, as a matter of law, "Congress enjoys a legal presumption that it will act responsibly" and not disclose the documents to alleged polluters.
Judge Smith said he would "consider the matter further."