The Bush administration's vow this week to block contempt charges from Congress could prove to be a successful strategy for protecting White House documents about the multiple firings of U.S. attorneys, Democratic legal scholars and legislative aides said yesterday.
The experts cautioned that complaints by Democratic lawmakers about the administration's legal stance are undercut by a Justice Department legal opinion issued during the Clinton administration. It contended, as the Bush administration did this week, that Congress has no power to force a U.S. attorney to pursue contempt charges in cases in which a president has invoked executive privilege to withhold documents or testimony.
You see, Congress can demand prosecution anytime it wants, they cannot, I repeat CANNOT compel the Justice department to actually prosecute anyone.
From The Corner:
U.S. attorneys have no power of their own. The power they exercise is executive power, which the Constitution vests entirely in the president. They are his delegates, not independent actors, and he may fire them for any reason or no reason. If he fires them for a stupid reason, that is a political blunder for which the president and his Justice Department will be politically damaged — as has certainly happened here. But it is not a crime.
Congressional Democrats have tried to investigate it as if it were a crime. They've violated constitutional separation-of-powers principles by issuing subpoenas to some of the president's top aides. The White House wisely declined to comply, and Congress's next step is to try to hold them in contempt of Congress.
Only there's a small problem. The Constitution vests Congress with no authority to prosecute. That is an executive power. Congress can say "prosecute" all it wants. It needs a U.S. attorney to do it. But the U.S. attorneys work for the president. Flexing its constitutional muscles, the executive branch is not going to prosecute any contempt urged by Congress. Checkmate. Like this whole theater from the start, the issuance of subpoenas and the chatter about contempt is political, not legal.
Once again the Democrats overplayed their hand, with every liberal blog jumping on the bandwagon, a bandwagon that was headed to nowhere.
Just another case of dogs chasing their tails round and round in circles.
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More from Wapo which supports The Corner's conclusions:
But administration officials and other legal scholars, including some Democrats, noted that Justice Department lawyers in the Clinton administration made a similar argument during a controversy with Congress over the nomination of a federal judge.
Walter E. Dellinger III, who headed the Office of Legal Counsel at the Justice Department then, wrote in a 1995 legal opinion that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."
That conclusion echoed a broader legal opinion issued 11 years earlier by then-Assistant Attorney General Theodore B. Olson, who headed the OLC during the first term of the Reagan administration.
Dellinger and several other legal experts from the Clinton era said yesterday that the Bush administration is fundamentally correct in its assertion that lawmakers cannot force the Justice Department to pursue a course that undermines a president's prerogative, including his power to protect information through executive privilege.
"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.
Christopher H. Schroeder, a Duke University law professor who was OLC deputy chief from 1994 to 1997, said that the administration's stance "as a legal matter may leave the Democrats without an effective remedy." He described the administration's legal argument as "a little over the line, but it's not that far out there."
Checkmate.
On to the next witch hunt? Any doubt that there will be one?
Not to me.
Both Democratically controlled houses have already proven, in six short months, that they would prefer to waste their time on issues that will get them nowhere, rather than actually do the job they were elected to do, which is legislate.
They wonder why their approval rating is down to 14% and dropping?
I don't.
Keep up with reactions over at memeorandum.
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