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Bush to invoke executive privilege Battle with House Republican is over sharing documents MSNBC STAFF AND WIRE REPORTS WASHINGTON, Sept. 6 — Preparing to invoke executive privilege for the first time, President Bush faces a showdown with a House committee over whether lawmakers may see certain Justice Department documents. For its part, the committee, chaired by a fellow Republican, planned to serve Attorney General John Ashcroft with a subpoena Thursday, demanding the documents and expanding its request to cover even more cases. BUSH HAS ACCEPTED the advice of White House counsel Alberto Gonzales, senior administration sources told the Washington Post and The Associated Press, and is ready to make an executive privilege claim to keep the House Government Reform Committee from seeing prosecutors’ memos on three Clinton-era investigations involving Democratic fund-raising, a former Clinton White House official and a former federal drug enforcement agent. The battle is being waged by Rep. Dan Burton, R-Ind., who argues that the Bush administration’s stance is a threat to Congress’ oversight responsibility. “If this unprecedented policy is permitted to stand, Congress will not be able to exercise meaningful oversight of the executive branch,” Burton said. A Burton aide told NBC News that the lawmaker was upset with the Bush administration’s stand and was “taking off the gloves.” A White House source told the Post that Burton’s request makes cooperation impossible. “Principle is very important to this administration,” the official said. “When there would be a clear violation of principle, we will proceed as we see fit.” HEARING NEXT WEEK Burton has scheduled a hearing for next Thursday — titled “The Need for Congressional Oversight of the Justice Department” — and has asked Ashcroft to testify. “The Committee will inquire about the Justice Department’s new policy to refuse to provide to Congress deliberative documents pertaining to criminal investigations,” Burton stated in a letter to Ashcroft. In a separate letter to Ashcroft, Burton accused Ashcroft of contradicting his stand as a U.S. senator, when he urged then Attorney General Janet Reno to release documents related to the fund raising probe. “I am concerned that you have one standard for a Democrat attorney general and another standard for yourself,” Burton wrote. HISTORY AND CLINTON Executive privilege is a doctrine recognized by the courts that ensures presidents may get candid advice in private without fear of it becoming public. The privilege, however, is best known for the unsuccessful attempts by former Presidents Nixon and Clinton to keep evidence secret during impeachment investigations. Gonzales has recommended that Bush make the privilege claim if Burton’s committee subpoenas the memos or seeks to question Ashcroft about them, administration sources said. The Bush administration knows of at least four other instances in which executive privilege was cited involving similar documents, the officials said. A senior administration official said that while the memos involve cases during Clinton’s presidency, Bush was prepared to invoke the privilege and create a clear policy that prosecutors’ discussions should be off-limits from congressional scrutiny. White House lawyers and the president concluded that “the fair administration of justice requires full and complete deliberations and that most often can best be accomplished when prosecutors think through their options in private,” the official said, speaking only on condition of anonymity. THE CHENEY FLAP The claim would be the latest of several by the new administration to restrain the flow of information to Congress about private deliberations. Vice President Dick Cheney has rebuffed requests by the General Accounting Office and Democratic congressmen to divulge information about people he met with and how he helped develop Bush’s energy policy. The White House signaled anew Wednesday it does not intend to turn over any Cheney documents to the GAO’s comptroller general. “The comptroller general has exceeded his lawful authority and the statute under which GAO is operating does not apply in this instance,” White House spokeswoman Anne Womack said. The GAO is Congress’ investigative and auditing arm. MIXED RECORD OF SHARING Ashcroft indicated last week that the administration intended to reverse the practice of sharing prosecutors’ deliberative documents with congressional committees. Burton’s committee has for months been seeking Justice Department memos about prosecutors’ decisions in the cases involving Democratic fund-raising, a former Clinton White House official and a former federal drug enforcement agent. The committee on Wednesday drafted subpoenas to be served on Ashcroft demanding those documents as well as 13 new types of documents related to an inquiry into how the FBI handled mob informants in the Boston area over three decades. Several such memos were shared with Congress during both Republican and Democratic administrations. Most recently in the 1990s such documents were turned over to the Whitewater, fund-raising, pardons and impeachment investigations. But the concept of extending executive privilege to Justice Department decisions isn’t new. During the Reagan years, executive privilege was cited as the reason the department did not tell Congress about some memos in a high-profile environmental case. And Reno advised Clinton in 1999 that he could invoke the privilege to keep from disclosing documents detailing department views on 16 pardon cases. COURT OUTCOME UNCLEAR Legal experts are split on how such a claim might fare in a court challenge. “Prosecution is a core executive function and from that starting point, a claim of executive privilege is quite a good one,” said John Barrett, a former Iran-Contra prosecutor who now teaches law at St. John’s University. But Noah Feldman, a constitutional law professor at New York University, said the fact that several prosecutorial decision-making memos have been disclosed to Congress in the past without apparent harm to the presidency could influence courts as they balance the competing interests of Congress and the White House. “The courts are going to have to weigh carefully whether to extend the privilege to a prosecutorial decision,” he said. |
