A FEDERAL JUDGE has dismissed the Justice Department's suit in the Gorsuch case, pitching this unfortunate confrontation between Congress and the executive into a new stage. On White House orders, Anne Gorsuch, administrator of the Environmental Protection Agency, had refused to turn over to a House committee 74 documents pertaining to the government's strategy in prosecuting law violators. Such conflicts occur frequently, but they have always been resolved through negotiation. Here, however, Mrs. Gorsuch became the first executive branch official to be cited for contempt of Congress.
When a contempt citation has been voted, the U.S. attorney is required to bring the matter before a grand jury--the first step in a criminal proceeding. But government lawyers were understandably reluctant to charge Mrs. Gorsuch with a crime. Instead, the department brought a civil action asking the court to settle this claim of executive privilege without subjecting the administrator to a possible jail sentence. Judge John Lewis Smith, however, refused to intervene in the constitutional controversy, and urged the two branches "to settle their differences without further judicial involvement."
So the case is now in limbo. Both sides have several legal options. The Justice Department can ask Judge Smith to reconsider his order, or it can appeal it. The U.S. attorney could present the case to a grand jury but then refuse to sign an indictment. Or the department could simply wait for the House to try to enforce its subpoena.
The House, theoretically, could send its own marshals out to arrest Anne Gorsuch and--an unlikely spectacle--keep her in a cell in the bowels of the House until she coughs up the documents. Or Congress could bring an action to require the U.S. attorney to proceed with the criminal case; or it could file a civil suit to enforce the subpoena--a tactic that worked for the Senate Watergate Committee.
All this legal maneuvering is fascinating to the lawyers and political scientists who are following the case. But those interested primarily in orderly and effective government would surely join in Judge Smith's plea for common sense and negotiation. Every single prior case of such conflict between the executive branch and the legislature has been settled without sending anyone to jail. Negotiations between the parties in this case should be reopened with that goal foremost in mind.