|
The New York Times
Power Without Limits
EDITORIAL,
nytimes.com on the Web, July 22, 2007
The Bush administration, which has
been pushing presidential power to new extremes, is reportedly developing an
even more dangerous new theory of executive privilege. It says that if
Congress holds White House officials in contempt for withholding important
evidence in the United States attorney scandal, the Justice Department simply
will not pursue the charges. This stance tears at the fabric of the
Constitution and upends the rule of law.
Congress has a constitutional right to investigate the purge of nine United
States attorneys last year. And there is no doubt that the investigation
has unearthed improprieties: several administration officials have already
admitted illegal or improper actions involving the politicization of the
country’s chief law enforcement agency.
But the administration has been extraordinarily defiant toward Congress’s
legitimate requests for information. The low point came recently when
Harriet Miers, the former White House counsel, refused even to show up in
response to a Congressional subpoena. Some of the questions she would have
been asked might have been protected by executive privilege, but others no doubt
would not have been. Ms. Miers had no right to ignore the entire
proceeding.
The next question is how Congress will enforce its right to obtain information,
and it is on that point that the administration is said to have made its latest
disturbing claim. If Congress holds White House officials in contempt, the
next step should be that the United States attorney for the District of Columbia
brings the matter to a grand jury. But according to a Washington Post
report, the administration is saying that its claim of executive privilege means
that the United States attorney would be ordered not to go forward with the
case.
There is no legal basis for this obstructionism. The Supreme Court has
made clear that executive privilege is not simply what the president claims it
to be. It must be evaluated case by case by a court, balancing the need
for the information against the president’s interest in keeping his
decision-making process private. Mark Rozell, an expert on executive
privilege at George Mason University, calls the administration’s stance “almost
Nixonian in breadth,” because of its assertion that “the mere utterance of the
phrase executive privilege” means that “no other branch has recourse.”
The White House’s extreme position could lead to a constitutional crisis.
If the executive branch refused to follow the law, Congress could use its own
inherent contempt powers, in which it would level the charges itself and hold a
trial. The much more reasonable route for everyone would be to proceed
through the courts.
This showdown between a Democratic Congress and a Republican president may look
partisan, but it should not. In a year and a half, there could be a
Democratic president, and such extreme claims of executive power would be just
as disturbing if that chief executive made them.
Congress should use all of the tools at its disposal to pursue its
investigations. It is not only a matter of getting to the bottom of some
possibly serious government misconduct. It is about preserving the checks
and balances that are a vital part of American democracy.
|
