December 14, 2001
Bush Claims Executive Privilege in Response to House Inquiry
By NEIL A. LEWIS
ASHINGTON, Dec. 13 — President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston. His order also denied the committee access to internal Justice Department deliberations about President Bill Clinton's fund-raising tactics.
Mr. Bush's action produced angry criticism from the chairman of the committee, Representative Dan Burton of Indiana, a fellow Republican who has been known principally as a relentless critic of Mr. Clinton.
At the same time, several of the committee's Democrats agreed at a hearing today that Mr. Bush's decision was an excessive use of executive power. Representative Barney Frank, Democrat of Massachusetts, even offered an unexpected tribute to Mr. Burton for his persistence in seeking the documents about the F.B.I.'s behavior in Boston.
Mr. Frank said he and others had misjudged Mr. Burton as a partisan Republican motivated only by a desire to hound Mr. Clinton. "I see now a genuine intellectual integrity in his approach," Mr. Frank said.
"Most House Republicans have been very submissive to the White House," Mr. Frank said, adding that the Federal Bureau of Investigation's problems with mob informers was a perfectly appropriate subject for Congressional oversight.
The subpoena the White House denied concerns a well-documented scandal in which F.B.I. agents had a close relationship with two mobsters long notorious in Irish-dominated South Boston, James Bulger and Stephen Flemmi.
The Justice Department has been investigating accusations that for decades, F.B.I. agents protected the pair while they committed crimes because they also provided information about Italian mobsters that helped virtually eliminate the Italian mob in New England.
In one case, the agents appear to have let an innocent man go to jail for murder to protect their informants. One former bureau official has been indicted and is awaiting trial.
In his order today directing Attorney General John Ashcroft to decline the committee's subpoenas, Mr. Bush said, "I understand that you believe it would be inconsistent with the constitutional doctrine of separation of powers and the department's law enforcement responsibilities to release these documents."
The president continued: "It is my decision that you should not release these documents or otherwise make them available to the committee. Disclosure to Congress of confidential advice to the attorney general regarding the appointment of a special counsel and confidential recommendations to Department of Justice officials regarding whether to bring criminal charges would inhibit the candor necessary to the effectiveness of the deliberative processes by which the department makes prosecutorial decisions."
Mr. Burton's House Government Reform Committee hearing today was confined to the administration's refusal to provide documents about the Boston F.B.I.'s behavior. Mr. Burton said it was the first time an administration had tried to block access to documents concerning an investigation of this nature.
Previously, administrations have threatened to invoke executive privilege, then negotiated with Congressional committees to avoid a court confrontation. When reports by two senior F.B.I. officials called for an independent prosecutor to investigate Clinton fund-raising issues, for example, committee staff members were allowed to review the documents at the Justice Department.
"We've tried to be reasonable," Mr. Burton said. "We've confined our requests to information from investigations that have long since been closed."
He added, "It seems like the Justice Department is more interested in creating a new policy of secrecy than in accommodating our need to get to the bottom of the Boston mess."
Committee aides said Mr. Burton would seek to call more Justice Department witnesses, including Mr. Ashcroft, and then decide whether to challenge the order in court.
Executive privilege is one of the most ambiguous concepts in constitutional law. The Supreme Court has recognized that a president must be able to speak freely with advisers without fear that those conversations will be disclosed. Legal scholars have called it a qualified privilege.
Michael Horowitz, chief of staff of the criminal division, said the Justice Department had given the committee many briefings and documents about the Boston case and had withheld only a small group of documents that were "internal deliberative memoranda." He said disclosure would "undermine the integrity of the core executive branch decision-making function."