Whitehouse on Contempt-of-Congress Fight: Bring It OnSome senators are queasy over a potential contempt-of-Congress showdown with the Bush administration over the U.S. attorney firings. Not Sheldon Whitehouse (D-RI), who sat down with TPMmuckraker in his Senate offices this morning.
Whitehouse said that the Bush administration has “redrawn the line” for a reasonable exercise of executive privilege. And that’s why he supports Senator Patrick Leahy’s efforts to hold current and former White House officials in contempt for not complying with Congressional subpoenas from the firings investigation. Leahy ruled last week that the administration’s assertions of privilege this summer in response to the subpoenas were invalid, a step towards issuing a contempt citation.
What’s more, Whitehouse welcomes the Constitutional showdown that would result. “I’m astounded at the breadth and the scope of the privilege that they claim,” the first-term senator said. “I actually hope that it comes to a point where we end up litigating it and getting a court decision and settling this question.”
Asked if he was going further than other senators, who’d use a possible contempt finding as a mechanism to compel the document disclosure, Whitehouse said the Bush administration has gone so far in “grading its own papers” — that is, deciding for itself what Congress is entitled to receive from the executive — that it’s time to return to Constitutional first principles. “I’d rather get it done,” he said:
“There has not been a lot of case law on this subject. We’ve been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it’s actually important that there be a legal line drawn to hold them to, because they’ve redrawn all the executive lines. I think it’d be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It’ll eliminate a lot of the back and forth in the future.”
Whitehouse doubted that the process — the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution — could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who’s president. “It might be, frankly, that with the Bush administration out we’d get a better decision,” he said. “We might have an administration that isn’t trying to protect anything, and is just interested in the legal question.”
It’s not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. “The boundary of that debate has been expanded dramatically by the Bush administration, and it’s important to get it back to where we’re discussing things around some common principles that the court can establish,” he said. “It should narrow the disagreement considerably if you’ve got an established legal framework in which you’re having the discussion.”
Whitehouse is one of a handful of Senators with executive experience. Before his election last year to the Senate, he was Rhode Island’s attorney general, working before that as U.S. Attorney for Rhode Island and as a legal adviser to Governor Bruce Sundlun. Where would he draw the boundary of legitimate executive privilege?
“When the president calls in his senior staff to pick an issue around, and they’re talking from a policy point of view, that, I think, is the core of executive privilege. We don’t want those discussions to be public, because the president then can’t get candid advice. The further you get from that, the less the privilege makes sense. The Bush administration has taken it where a local party official contacting a staff person in the White House has executive privilege — to me, that’s just way out of line.”
What about a former staffer, like Harriet Miers or Karl Rove — both of whom were subpoenaed by the committee over the U.S. attorney firings and who refused to testify?
“No, I think that does make sense. The privilege, really — in its common-sense application — applies to the conversation that took place. Whether or not the president’s legal counsel, having a discussion with him, stays on for two years in the White House or moves on to a different position or leaves the administration and becomes a judge or whatever, that I don’t think should affect the outcome. That’s not where my focus is. My focus is more on the breadth of the scope of the initial privilege, not where it travels.”
Since the summer, a number of GOP Senators on the committee have claimed to support movement toward a contempt ruling — effectively daring the Democrats to issue a contempt citation, with the expectation that the Democrats would prefer to avoid a Constitutional battle over the separation of powers. Sen. Lindsay Graham (R-SC) told The Hill in July that such a fight was “the last thing the country needs,” but told his colleagues to “let the courts fight this out.” Sen. John Cornyn (R-TX) added, “We’ve got to cut out some of the politics and get this to the courts.” If Whitehouse can prevail on his Democratic colleagues on the committee and in the full Senate, Graham and Cornyn might have to be careful about what they wish for.
