The Justice Department sent a letter yesterday to the House Judiciary Committee that made the administration’s position official: a U.S. attorney will not enforce a citation of contempt, should it pass the House.
Or as the letter (you can read it here), sent to the committee yesterday by Principal Deputy Assistant Attorney General Brian A. Benczkowski, put it:
“As it considers the contempt resolutions, we think it is important that the Committee appreciate fully the longstanding Department of Justice position, articulated during Administrations of both parties, that “the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege.”
That last quote is indeed from a 1995 opinion from Clinton’s Justice Department, which The Washington Post reported on this weekend. As the Clinton-era DoJ officials behind that memo told the Post, they didn’t think that Congress could force the U.S. attorney to prosecute, but did think that the president’s assertion of executive privilege should be heard in court.
Of course, the committee chose to press on with the contempt citation anyway, forcing the issue, and the clash will likely nevertheless land in court.
Note: As we’ve noted earlier, whatever the DoJ has said about it, the U.S. attorney for Washington, D.C., Jeffrey Taylor (or someone in his office if he’s forced to recuse himself), will still have to make the ultimate determination as to whether to enforce the contempt citation.
From the Post:
[Walter E. Dellinger III, who headed the Office of Legal Counsel and signed that 1995 memo] and several other legal experts from the Clinton era said yesterday that the Bush administration is fundamentally correct in its assertion that lawmakers cannot force the Justice Department to pursue a course that undermines a president’s prerogative, including his power to protect information through executive privilege.
“Congress can determine what’s unlawful but not determine who should be prosecuted,” said Dellinger, who is now a Duke University law professor. “It’s an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid,” a matter that he said would have to be adjudicated on its merits in the courts.
Christopher H. Schroeder, a Duke University law professor who was OLC deputy chief from 1994 to 1997, said that the administration’s stance “as a legal matter may leave the Democrats without an effective remedy.” He described the administration’s legal argument as “a little over the line, but it’s not that far out there.”
Schroeder said that, if Congress passes a contempt citation that the administration blocks, lawmakers still have the option of initiating a civil proceeding against White House officials, but such an action could take years to settle.
