Is the Bush administration ... right?

The president's order shielding Harriet Miers from charges of contempt may seem like a power grab, but it's not a new idea. Congress just needs new tools to fight back.

By Alex Koppelman

Read more: George W. Bush, Bill Clinton, Janet Reno, Politics, News, Watergate, Harriet Miers, Alex Koppelman

AP Photo/Pablo Martinez Monsivais

President Bush delivers remarks on July 11, 2007, in the Eisenhower Executive Office Building in Washington.

July 23, 2007 | By late last week, the fight between the Bush White House and Congress over the firings of nine U.S. attorneys seemed to be leading toward possible contempt charges for some former administration officials. The Bush administration had previously asserted executive privilege over certain documents and witnesses sought by Congress in its investigation of the firings, even directing former White House counsel Harriet Miers to disobey a subpoena ordering her to appear before Congress. Democratic legislators were left with the option of certifying a citation of contempt of Congress to the U.S. attorney for the District of Columbia in hopes of compelling Miers and former White House political director Sara Taylor to testify fully.

On July 19, however, the Washington Post revealed that the Bush administration was unafraid of contempt citations. Should Congress certify a contempt citation to U.S. attorney Jeffrey Taylor's office, it would be Taylor's duty under federal law to bring the matter before a grand jury -- but the White House will direct him not to.

Reaction from some corners was swift, severe and horrified. President Bush seemed to many to be enlarging an already expansive definition of executive privilege. Karen Tumulty, Time magazine's national political correspondent, said that with the Post article "the phrase [contempt of Congress] takes on new meaning ... There's no way to challenge the President's assertion of executive privilege, because, well, the President has asserted executive privilege." And in a statement given to Salon, Senate Judiciary Committee chairman Pat Leahy, D-Vt., called the decision "deeply disturbing" and said that "this President and Vice President seek to override the independence of law enforcement and manipulate our valued system of checks and balances. This is another demonstration of the lawless and unchecked path the President, the Vice President and their loyal aides have taken us down."

All that may well be true. And it may be especially disturbing to some that the Bush administration's position seems to flow from the radical "unitary executive" theory, which exalts the power of the presidency over the other branches of government and has played a role in many controversial administration decisions. But if the White House's justification for its refusal to honor any congressional contempt citations is examined strictly on legal grounds, then in this case it is not appropriating to itself any novel idea of presidential power. The move itself was predictable, based on positions held for more than two decades during four different presidential administrations by the Department of Justice's Office of Legal Counsel. In fact, though the Clinton administration never faced a similar showdown in its own executive privilege fights with Congress, it would almost certainly have taken a similar position in such a case. When contacted by Salon, even those legal scholars who served under Democratic administrations said that whatever their opinions about President Bush's prior assertions of privilege or of his order to Miers not to appear before Congress, they think the White House is correct -- or at least on legally defensible ground -- in this latest assertion of power. Congress may simply have to think of new ways to push back.

"I'm struggling here," Cass Sunstein, a professor at the University of Chicago's Law School (he wrote "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America" and spent some time in the OLC under both the Carter and the Reagan administrations), said in an interview, "because I don't have the reaction that the president's assertion of power to stop the U.S. attorney from prosecuting is independently outrageous ... This is the attorney general saying to the U.S. attorney, 'We don't want you bringing a prosecution which is violative of the president's constitutional prerogatives. You work for the guy, so don't do that.' That's, in the abstract, OK. In the particular case it's not OK, where it's being invoked to say that Ms. Miers can refuse to even appear before a congressional committee. That's the most outrageous part of this."

Dawn Johnsen, a professor at the Indiana University School of Law who served in the OLC for five years during the Clinton administration, heading it as acting assistant attorney general from 1997 to 1998 (and who has previously written for Salon), took a similar stance.

"I think that the position that the administration is taking here is very strong, actually. I'm someone who thinks that the Bush administration's assertion of executive privilege is overbroad and that they should be turning over more information, but I think that it's right that if the president does legitimately assert executive privilege the president may direct the U.S. attorney not to prosecute someone who acts consistently with that assertion."

It may be surprising to hear Democrats expressing such views, even with caveats, but opinions on this narrow subject are often based as much on loyalty to a branch of government as on allegiance to a political party. The argument may not be about a "rogue presidency," but about the relative powers of the executive and legislative branches of government.

Next page: "I don't know anyone in history -- until Ted Olson came along -- who for a second bought this nonsense"