The administration’s position is a direct assault on prosecutorial independence, and an attempt to vest the President with the unchallengeable power to block criminal prosecutions of anyone in the Executive Branch who breaks the law at the President’s direction.
The Olson Memorandum on which they are relying specifically emphasizes the following:
The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.
That means that if Congress and the administration end up in court over enforcement of the criminal contempt statute, and the court rejects the administration’s theory and finds that Congress does have the authority to compel the U.S. Attorney to present its contempt citations to a Grand Jury, the administration would be free to defy that judicial finding, and continue to block its U.S. Attorneys from prosecuting, since — they claim — courts lack the authority to “require or implement the prosecution” of an Executive Branch employee who defies a Subpoena at the President’s direction.
The theory they are touting places criminal Executive Branch employees beyond the reach of courts, and means that they would have the right to defy any court which rejects their theory and rules against them. Though they have not yet explicitly exercised that court-defying power, they clearly believe they possess it.
(3) It is important to note, as the Olson Memorandum did, that even if Congress cannot compel the U.S. Attorney to present the contempt citation to a Grand Jury, there are other Congressional mechanisms to test the validity of the President’s executive privilege theory, and presumably, the administration is not (at least not yet) contesting those. Former OLC official Marty Lederman described those options several weeks ago here. Aside from the “inherent contempt” power which the Post highlights — whereby Congress can literally just convene its own trial and even forcibly arrest those who are guilty — there is also a civil mechanism whereby it can commence a lawsuit in a federal court seeking a ruling on the validity of the Executive Privilege claims from the president.
Not every questionable assertion of Executive Privilege should be resolved in the context of a criminal prosecution because not every refusal to comply with a subpoena is criminal or even wrong. There is such a thing as “Executive Privilege,” and — like all other privileges, such as attorney/client or doctor/patient — it does sometimes entitle defiance of a subpoena. It happens all the time in judicial proceedings that subpoenas are issued, the subpoenaed party claims a right not to comply, and both sides then present their arguments to a court, which resolves the dispute.
But refusals to comply with subpoenas become criminal where they are grounded not in good faith (even if questionable) assertions of privilege, but where, instead, a contempt for the rule of law is evidenced because one party abuses legitimate privileges in order to shield itself from investigation and accountability.
What the Bush administration is asserting here is the power to abolish that distinction, to immunize itself completely from the threat of criminal prosecution in those cases where it plainly abuses the assertion of privilege (as it is undoubtedly doing now) in order to immunize itself from accountability under the law. It removes completely the specter of criminal prosecution for refusing to comply with lawful investigations by vesting in the President an absolute, unchallengeable power to defy all subpoenas even where it has no arguable basis for doing so, by vesting in him the power literally to order federal prosecutors not to pursue an indictment.
(4) I confess some difficulty here in becoming particularly outraged over this latest theory. There is nothing new here. As has long been known, this administration believes themselves to reside above and beyond the reach of the law. What else would they need to do in order to make that as clear as can be? They got caught red-handed committing multiple felonies — by eavesdropping on Americans in precisely the way the law we enacted 30 years ago prohibited — and they not only admitted it, but vowed to continue to break our laws, and asserted the right to do so. And nothing happened.
This latest assertion of power — to literally block U.S. Attorneys from prosecuting executive branch employees — is but another reflection of the lawlessness prevailing in our country, not a new revelation. We know the administration breaks laws with impunity and believes it can. That is no longer in question. The only real question is what, if anything, we are willing to do about that.
Yes, it is true that, as various Democratic statements are claiming, this theory poses a constitutional crisis since, yet again, the President declares the other two branches of government impotent and himself omnipotent. But we have had such a crisis for the last five years. We have just chosen to ignore it, to acquiesce to it, to allow it to fester.
There is no magic force that is going to descend from the sky and strike with lighting at George Bush and Dick Cheney for so flagrantly subverting our constitutional order. The Founders created various checks for confronting tyrannical abuses of power, but they have to be activated by political will and the courage to confront it. That has been lacking. Hence, they have seized omnipotent powers with impunity.
At this point, the blame rests not with the Bush administration. They have long made clear what they believe and, especially, what they are. They have been rubbing in our faces for several years the fact that they believe they can ignore the law and do what they want because nobody is willing to do anything about it. Thus far, they have been right, and the blame rests with those who have acquiesced to it.
It has been six months since the Democrats took over Congress. Yes, they have commenced some investigations and highlighted some wrongdoing. But that is but the first step, not the ultimate step, which we desperately need. Where are the real confrontations needed to vindicate the rule of law and restore constitutional order? No reasonable person can dispute that in the absence of genuine compulsion (and perhaps even then), the administration will continue to treat “the law” as something optional, and their power as absolute. Their wrongdoing is extreme, and only equally extreme corrective measures will suffice.