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Published on Tuesday, July 24, 2007 by The San Francisco Chronicle

Congress Must Reassert The Balance of Powers

by Melanie Sloan

The White House, by proclaiming that it will not let the Justice Department pursue contempt charges against a former White House official who failed to comply with a congressional subpoena for information regarding the firing of nine U.S. attorneys, has declared the executive branch to be superior, rather than co-equal, to the other two branches of government. Congress must look for other avenues of redress to protect its oversight role.

Even before the White House made its surprising announcement, seeking contempt charges posed problems for Congress. Namely, contempt charges against a former White House official such as counsel Harriet Miers would not result in Congress receiving any documents or testimony. Rather, Miers might be indicted and forced to stand trial for criminal contempt. Even if she were convicted, Miers would not have to testify or deliver documents and the question of whether the White House has properly invoked executive privilege might or might not be raised in higher courts. All a conviction would lead to is a potential sentence of up to one year in jail and a fine of up to $100,000.

In an effort to dodge the spectacle of Miers being criminally charged, the Bush administration has resurrected a 1986 Department of Justice Office of Legal Counsel opinion that the U.S. attorney is not required to prosecute an executive branch official carrying out the president's instruction to assert executive privilege. The Bush administration is now relying on this non-binding legal opinion to take the radical -- some might say Nixonian -- position of ordering the Justice Department to ignore existing federal law and not file charges in a criminal case.

The Bush administration's reliance on this old Office of Legal Counsel opinion has another hidden cost; although the opinion closed the door on the contempt option, it suggested a civil suit as another means to enforce a subpoena. So, if the administration relies on this opinion to claim the Department of Justice cannot bring a contempt case, it will be hard pressed to argue that Congress cannot proceed with a civil suit to enforce the subpoena.

That said, there has been some judicial reluctance to get involved in these matters in the past. In 1983, a judge refused to intervene in the only congressional subpoena contempt matter to be sent to a U.S. attorney. There, a House committee served a subpoena on EPA Administrator Anne Gorsuch and President Ronald Reagan sent her a memo instructing her to withhold certain documents. The full House cited Gorsuch for contempt, but one day before the matter was certified to the U.S. attorney, the Reagan administration filed a civil suit asking the court to find that Gorsuch acted lawfully. The court refused to get involved, instead urging the executive and legislative branches to cooperate and settle their difference, which they did.

Although other courts are not obligated to follow this decision, a judge hearing the enforcement of the subpoena against Miers might similarly choose to duck the issue. On the other hand, given the radical position the administration is staking out here, a court might feel obligated to consider such a case to preserve the judiciary's constitutional role as a check on executive abuses. But leaving this to the discretion of any individual judge does not adequately protect Congress' authority.

This leaves one final option: Congress could pass a statute specifically granting federal courts the authority to hear either just this specific matter or to hear any cases involving the enforcement of congressional subpoenas against the executive branch. In 1973, the Senate Select Committee on Presidential Campaign Finances sought civil enforcement of its subpoena for Watergate tapes and documents. After a lower court refused to hear the matter, Congress passed legislation authorizing jurisdiction over just this specific suit. Ultimately, the committee lost, namely because the House Judiciary Committee already had the tapes. Nonetheless, by enacting the statute, Congress had its day in court.

In the current showdown, Congress could not only provide federal courts with jurisdiction, it could also provide for direct review by the Supreme Court, thereby ensuring that the White House's efforts to further expand the boundaries of executive privilege is heard while the administration is still in office. That alone would be a victory. In any event, the stalemate in which the Bush administration is taking an unprecedented and expansive view of executive power demonstrates how critical it is for Congress to provide the courts with the power to step in and resolve such controversies.

Melanie Sloan, a former assistant U.S. attorney, is the executive director of Citizens for Responsibility and Ethics in Washington (CREW).

© 2007 The San Francisco Chronicle

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