www.baltimoresun.com/news/opinion/bal-ed.privilege21jul21,0,3343718.story
A terrible precedent
July 21, 2007
So, President Bush won't allow U.S. attorneys to represent Congress in contempt proceedings that challenge his claim of executive privilege because they work for him and he has already settled the matter.
This position, not formally conveyed to Congress but leaked to The Washington Post, is doubtless part of the bluff-and-bluster campaign aimed at dragging out the lawmakers' probe - ironically, of undue political influence on the Justice Department - until Mr. Bush is safely out of office.
But it significantly raises the stakes in this constitutional standoff to the point where a negotiated settlement may no longer be possible. Congress must protect its prerogatives as an equal branch of government.
Mr. Bush seems to have precluded the most obvious option of appointing a special prosecutor; that would have to be done by the Justice Department. Lawmakers may have to pursue other high-profile legal tactics to put these vital constitutional questions before the courts.
Certainly, the sweeping assertion that a president may simply ignore a law that requires the Justice Department to represent Congress in criminal contempt proceedings cannot be allowed to stand as a precedent. The danger of that, even if the current dispute is defused, is evident because Bush administration officials are basing their position on a 1984 Justice Department opinion never tested in court.
On a practical level, this seems a foolish fight for the president to be waging.
The Democrats running Congress are investigating whether the Bush administration fired nine of its own appointees to U.S. attorney posts for their failure to apply Bush political goals to prosecutorial decisions. There's no dispute that a president has broad authority to fire his appointees, and if the administration had been forthcoming early about its motives, the Democrats might have looked silly for pursuing the matter.
Instead, Attorney General Alberto R. Gonzales stumbled right out of the starting gate with blanket denials of political influence that were later contradicted by his former aides. Attempts to clarify the picture with accounts from White House officials have been blocked by Mr. Bush's claim that privacy of internal White House discussions is protected by executive privilege.
This stonewalling is symptomatic of an administration that has much to hide. After six years in which the Republican-run Congress mostly ignored its oversight role, Democrats are now poking into dark corners and exposing shameful secrets.
Just this week, lawmakers revealed that the Federal Emergency Management Agency has refused since early last year to investigate staff concerns about harmful chemicals in the trailers occupied by refugees from Hurricane Katrina because it didn't want to risk liability for their health problems.
Indeed, what may sometimes look like partisan bickering is actually the healthy result of the constitutional separation of powers as well as a government divided between the political parties.
Mr. Bush is seeking to avoid all that by executive fiat, declaring, in effect, that presidents are above the law. Richard Nixon tried that, too, in the only one of scores of such executive privilege disputes that reached the Supreme Court. It failed because his claim was too broad; he was resisting the subpoena of a grand jury conducting a criminal investigation under the direction of a special prosecutor. There may be grounds for criminal charges in this case, too, if it can be established that Bush aides were involved in obstructing justice.
Whatever was going on at the Justice Department may not rise to the level of Mr. Nixon's abuse of power. But the Bush administration's drive to undermine the constitutional protections of checks and balances are so alarming because they would allow such abuses to be conducted with impunity.
Too much power is dangerous to a democracy, and this administration has pushed the envelope on about every front imaginable - from secret spying on its own citizens to launching a war on false pretexts.
Congress cannot allow Mr. Bush's regal pretensions to become the model for a future chief executive.