Bush administration officials unveiled a bold new assertion of executive authority yesterday 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."
This is huge news. What the president is saying here is that, since all federal prosecutors, including the one in DC, work for him, and since the only way for Congress to contest executive privilege is to refer the case to a federal prosecutor, Congress simply has no power to contest executive privilege. At all.
And what is covered under executive privilege, kids? Answer: anything the president says is covered.
Short of sending the army to occupy the Capitol building, this is just about the most flagrant action a president can take to undo the constitutional system of checks and balances. If this is allowed to stand, then presidents will no longer be subject to serious congressional oversight, because such oversight will now rely entirely on whatever the president allows to be uncovered. Furthermore, this is a full admittance from the president that the Bush Justice Dept. is simply another office in the political wing of the White House, to be manipulated to further the president's prerogative in the quickly deteriorating system of checks and balances.
This, by the way, is precisely why the US attorney purge was so important. Attorneys with integrity become dangerous and unpredictable when asked by their superiors to allow the Republic to be undermined. Something tells me Bush's shills will be a touch more reliable.
Scott Horton at Harpers has a good article on the issue here.
So what can Congress do? That's the big question from here. They have to find a way to get their case to the Supreme Court. Despite what the president expects, there is one recourse the Congress still has: inherent contempt, whereby the Congress would actually have the Sergeant-at-Arms arrest the person refusing to testify and put them in the Capitol jail (yeah, I didn't know they had those, either). And either chamber can do with a simple majority vote. Then the president's only recourse to getting his employee back would be... taking them to the Supreme Court.
Marty Lederman notes another option as well, namely filing a civil action in a federal court.
And there is, of course, a third option.
It all comes down to Speaker Pelosi and her willingness to take this to the next level.