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Go to Court

Instead of wasting its time voting to hold present and former White House officials in contempt for failing to testify and produce documents in connection with the firing of nine U.S. attorneys, the House should take the case to court — possibly with the Senate joining in — to challenge President Bush’s claim of executive privilege.

The House Judiciary Committee, with the support of Speaker Nancy Pelosi (D-Calif.), has scheduled a vote today on contempt charges against former White House counsel Harriet Miers and current Chief of Staff Josh Bolten, but the action is doomed to lead nowhere.

That’s because the avenue the House is traveling — “a statutory contempt finding” — requires the Justice Department to present the case to a grand jury and to prosecute if the grand jury indicts. But the Bush administration has served notice that Justice will not enforce this or any other case when the president invokes executive privilege.

Legal scholars of both parties contend that the administration is within its legal rights in arguing that Congress has no constitutional power to compel an executive branch agency to undermine an executive prerogative such as executive privilege.

It does strike us as another case of overreach by the Bush administration to assert that the Justice Department will never enforce a Congressional contempt finding against a claim of executive privilege. Such a sweeping assertion could enable a president to shield his entire administration from Congressional oversight by claiming privilege and leave Congress no recourse except to assert its “inherent contempt authority,” involving a trial on the House or Senate floor and, upon conviction, an arrest by the Sergeant-at-Arms and imprisonment in the Capitol — a spectacle not seen since 1934.

The House Judiciary Committee thankfully is not traveling the “inherent” route, but its present path, as we said, will lead nowhere. Some cynics say that’s just what’s intended — a political standoff in which Democrats are empowered to point fingers at the administration and charge that nine U.S. attorneys were fired for nefarious political — or even criminal — reasons that no one can prove.

Two former Justice Department officials — Walter Dellinger from the Bill Clinton administration and Lee Casey from the Ronald Reagan and George H.W. Bush administrations — suggest that the way to resolve the issue is to ask the courts to determine whether the administration’s claim of executive privilege is valid. Casey said the House should file a civil suit and ask for expedited consideration so that the matter does not drag on for months.

On the merits, the White House seems to be on solid ground in claiming that U.S. attorneys serve at the pleasure of the president and can be fired for any reason and that Congress can’t compel testimony from a White House counsel or gain access to internal documents when no evidence of a crime has been unearthed. On the other hand, Congress might legitimately gain access if it has evidence that officials lied under oath.

The way to find out is to take the matter to court. And the House would be on stronger ground if the Senate joined its suit. If the Bush administration holds Congress in minimum high regard, it does have a record of yielding to the judiciary. It couldn’t defy two coequal branches acting together.

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