This is a follow-up to yesterday’s post about the L.A. Times story on executive privilege. There are two levels to the issue: 1) has the President validly invoked executive privilege as to Harriet Miers, and 2) must a U.S. Attorney bring a contempt citation against Miers, despite the fact that the Justice Department’s articulated view is that she was privileged not to appear?
The article was primarily concerned with issue #2. Yesterday I discussed how the article painted a dramatic but utterly fraudulent picture of a brewing confrontation on this issue between the Bush administration and the U.S. Attorney for the District of Columbia. The article’s narrative portrayed the U.S. Attorney as “pitted against his bosses” on the issue of whether to pursue a contempt citation against Miers. Comically, there is no evidence that any such confrontation took place anywhere but in the editors’ minds. As I noted yesterday, for all we know, the U.S. Attorney in question agrees with the Department of Justice.
In today’s post, I want to highlight the lack of context that the story gives to the President’s actions. The article portrays the Bush administration’s actions as flying in the face of a law:
Despite a federal statute referring to the U.S. attorney’s duty to take contempt cases to the grand jury, they believe it would be impermissible under the law, and violate the doctrine of separation of powers under the Constitution.
An expert is later quoted saying that the statute is “unambiguous” in its requirement that contempt citations be referred to the grand jury. The article acknowledges that the Bush administration disagrees, but cites a Reagan-era memo as the only authority for the Bush administration’s position — as if two Republican administrations are the only ones to have held this view.
Not so. Namely, as Beldar says in this comment, the Bush Administration position is not a radical view of the law. Why, even Bill Clinton’s Justice Department agreed:
As to whether Congress can compel a U.S. Attorney to prosecute the Executive for defying a Congressional subpoena, this isn’t a Democrat vs. Republican issue. It’s an Executive vs. Congress issue, on which the Reagan, Clinton, and Bush-43 Administrations have all taken absolutely consistent positions. Saturday’s WaPo noted that:
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.
This was, of course, printed on a Saturday and buried on page 3, since it would interfere with the Dems’ PR campaign for the WaPo to run a story that ought to have been headlined: “Bush Administration, Just Like Every Other, Refuses to Prosecute Itself Over Its Refusal to Be Congress’ Simpering Bitch.”
Beldar and the Washington Post make good points — but there’s even more evidence than that. The “broader legal opinion” cited by the Post also cited an example (at page 119) from the Eisenhower and John F. Kennedy administrations in which the Department of Justice refused to refer contempt of Congress citations to a grand jury. The memo also cites 1976 testimony from Assistant Attorney General Rex Lee, given during the Ford administration, to the effect that a valid invocation of executive privilege would justify a refusal to refer a citation to a grand jury.
In other words, this is not a new position, or a Republican (Reagan/Bush) position. It is the position advocated by at least six different administrations over the last 50 years — including JFK and Clinton.
Does the L.A. Times provide this context? Not on your life. Instead, we get seeming astonishment that the Bush administration would take this position, bolstered by the opinion of an expert.
About whom I will have more later this week. He and I have been discussing these issues, and I find his views quite startling in the breadth of the leeway he would give Congress to encroach on executive power. But that discussion will have to await a future post.
P.S. Beldar’s comment also provides a wealth of links addressing issue #1, presenting a strong case that the President’s invocation of privilege regarding Miers’s appearance is sound.
P.P.S. That longstanding position of at least six presidential administrations is described by our pal Glenn Greenwald as an “obviously radical position.” Well, there you have it, then.