"Unseemly" is too gentle a word for the current warring between the executive and legislative branches over claims of executive privilege. "Unnecessary," "ill-advised" and "destructive" are more apt characterizations.
The House of Representatives would have EPA Administrator Anne M. Gorsuch arrested, booked, and sent to the "big rock" for adhering to President Reagan's direction not to produce approximately 64 documents.
Some in Congress would lead us to believe Gorsuch has been soft on industrial firms with waste clean-up problems. That may or way not be the case, and Congress has a legitimate interest and constitutional mandate to find out.
But hard cases as well as difficult constitutional tasks too often make bad law, and this one is no exception.
The House action may well bring a ruling on the executive privilege doctrine that will weaken the House's ability to effect the usual compromise solutions to obtain the access to documents it needs in furtherance of its oversight functions.
Cabinet and agency heads may commonly find themselves subject to the risks, perils and unseemliness of criminal trials to determine their claims of privilege and whether they are made in good or bad faith.
The Watergate-era rhetoric, the politics of the environmental issue and the frailty of human emotion all add to the prospect of severe institutional and personal damage, not to mention endangering the compelling public interest all this is supposed to serve--the proper enforcement of the "Superfund" hazardous waste clean-up.
A deliberate feature of the constitutional scheme is to leave the allocation of powers unclear in certain situations. Rather than specifying and allocating all governmental power in particularized and agonizing detail, the framers used general language that suggests that where conflicts in scope of authority arose between the coordinate branches, they expected an energized spirit of compromise to promote resolution.
Never has the failure to reach accord led to the potential the Gorsuch case presents for polarizing the branches.
The dispute between the House and Gorsuch arose late in the last Congress when two separate House subcommittees were struggling with EPA, as well as among themselves, to exercise their responsibilities to ensure that the implementation and enforcement of the Superfund Act is proceeding in a proper manner. A subpoena was issued by one subcommittee for virtually every document related to all sites listed as national priorities. A review took place in the executive branch that resulted in the identification of the 64 documents in question. Gorsuch then appeared before the subcommittee, reported EPA would make more than 787,000 pages of documents available--some 52 filing cabinets--and tendered to the subcommittee the first five file boxes. She further testified that at a cost of some $223,000 and some 15,000 man- hours, a March 1 deadline would be met. To this date, according to Justice, this initial submission of documents is still unreviewed by the subcommittee.
In the middle of the night and during the waning hours of the lame-duck 97th Congress, a resolution was passed by a vote of 295-105 citing Gorsuch for contempt. Minutes later, just before midnight, the executive branch sued the House in a civil action in federal court seeking declaratory relief, and offered to submit the contested documents to the trial judge for his in camera determination of the validity of the executive privilege claim. Lawyers for the House have since moved to dismiss the case, saying that the courts have no jurisdiction to hear the case and that such a suit against the House is barred by the speech and debate clause of the Constitution, an ironic reliance on the absoluteness of another privilege.
These procedural hurdles are not insignificant. But if Judge John Lewis Smith Jr., who has this historic case, reaches the merits, his first step should be to use whatever leverage of persuasion the court has to effect some kind of compromise, to resolve this clash in a manner that accommodates the competing interests, as all prior administrations and congresses have been able to do.
The U.S. Court of Appeals for the District of Columbia did just that during our time in office, in a case in which Congress, through Rep. John Moss, intervened at the end of the Ford administration in a government civil suit involving AT&T. Moss sought documents on foreign intelligence wiretaps for which we had invoked executive privilege. One year and many briefs and hearings later, the court in effect arbitrated a compromise solution that kept executive branch control of the documents and allowed the congressman himself to review a random sampling of the documents in the Department of Justice.
If such judicial arbitration fails, Judge Smith will have to rule on the validity of the executive privilege claim as to each document, and in so doing, somehow identify, balance, and weigh the congressional interest for that document.
If he rules that he cannot hear the case because of insurmountable jurisidictional hurdles, what then? Does Congress enact legislation specifically conferring jurisdiction on the courts to resolve such a dispute? Do we lock Gorsuch up in one of those jail cells beneath the Capitol and put her on trial? Can she be criminally convicted for a good-faith assertion of executive privilege at the specific direction of the president? If it is criminal, who then commited the crime? What if half or a fourth of the documents are to determined to be privileged, and some not. Do we still fine her and lock her away for a year? It is no laughing matter, though absurd.
Certain significant and fundamental constitutional principles are too easily submerged in this legal mire.
Congress is wrong to assert that it has an absolute right to all documents in the executive's possession, or to be sole arbiter of what documents the executive may withhold. And as we learned in the Nixon tapes case, the asserted claim of executive privilege by the executive is not absolute either.
Executive privilege, however, is a legitimate principle, serves important governmental interests and has been asserted at one time or another by virtually every president from George Washington on.
The interest for a claim of executive privilege is based on the practical need for the confidentiality of communications within the executive branch to carry out its constitutional responsibilities, as well as the doctrine of separation of powers. "Tempered candor," in the words of the Supreme Court, would be the result of a doctrine of absolute disclosure. The effect would not just be chilling, but freezing. Underlying documents of advice to the executive should thus be protected.
Moreover, and especially relevant to the Gorsuch case, effective law enforcement relies heavily on ensuring confidentiality in the enforcement process. Without its being ensured, efforts of the executive branch to enforce the law effectively would be undercut by disclosure of sensitive investigative techniques, methods or strategies, forewarning of suspects under investigation, deterrence of witnesses coming forward, endangering the safety of confidential informants, and prejudicing the rights of those under investigation.
In the case of disclosures to Congress, a serious perception of potential political influence could be created over an enforcement decision if, for example, the subject of such an ongoing enforcement file is a major constituent of the member of Congress receiving this usually confidential information.
The congressional stampede here to invoke criminal contempt regrettably disparages what is Congress' most severe sanction short of impeachment.
The judicial branch must once again arbitrate the constitutional scheme to ensure that the powers entrusted to the coare ordinate branches are properly balanced. It's too bad that this enormously complex task must now be undertaken.