Bush officials widen assertion of privilege

WASHINGTON — Bush administration officials unveiled a bold new assertion of executive authority Thursday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued Thursday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration that made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

Mark Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

The administration's statement is a dramatic attempt to seize the upper hand in an escalating constitutional battle with Congress, which has been trying for months, without success, to compel White House officials to testify and to turn over documents about their roles in the prosecutor firings last year. Among those fired was John McKay of Seattle.

Thursday, a House Judiciary subcommittee voted to lay the groundwork for contempt proceedings against White House chief of staff Joshua Bolten, after a similar decision last week against former White House counsel Harriet Miers.

The administration has not directly informed Congress of its view. A spokeswoman for Rep. John Conyers, D-Mich., the Judiciary Committee's chairman, declined to comment. But other leading Democrats attacked the argument.

Senate Majority Leader Harry Reid, D-Nev., called it "an outrageous abuse of executive privilege. The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."

Sen. Charles Schumer, D-N.Y., said the administration is "hastening a constitutional crisis," and Rep. Henry Waxman, D-Calif., said the position "makes a mockery of the ideal that no one is above the law."

Waxman added: "I suppose the next step would be just disbanding the Justice Department."

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney.

Both chambers also have an "inherent contempt" power, allowing either body to hold trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.