Posted on 09/05/2001 1:23:51 PM PDT by jern
By JOHN SOLOMON, Associated Press Writer
WASHINGTON (AP) - President Bush is prepared to invoke executive privilege if Congress demands to see documents about prosecutors' decisions in three Clinton-era cases, administration officials said Wednesday.
The claim, if made, would be Bush's first known use of executive privilege, a doctrine recognized by the courts to ensure presidents can get candid advice in private without fear of it becoming public.
White House Counsel Alberto Gonzales recommended that Bush make the privilege claim if a Republican-led House committee subpoenas the memos or seeks to question Attorney General John Ashcroft about them, the officials told The Associated Press.
The House Government Reform Committee prepared subpoenas demanding the disputed documents and planned to serve Ashcroft on Thursday, setting up a possible legal showdown.
The officials said the administration has researched at least four other instances in which executive privilege was cited involving similar documents.
Executive privilege is best known for the unsuccessful attempts by former Presidents Nixon and Clinton to keep evidence secret in impeachment investigations.
Rep. Dan Burton (news - bio - voting record), R-Ind., the chairman of the House committee, said the Bush administration's stance threatened Congress' ability to oversee the executive branch.
``While I have a great deal of respect for the attorney general, he has announced a new policy that broadens executive privilege,'' Burton said. ``If this unprecedented policy is permitted to stand, Congress will not be able to exercise meaningful oversight of the executive branch.''
Burton's committee has for months been seeking Justice Department (news - web sites) memos about prosecutors' decisions in cases involving Democratic fund raising, a former Clinton White House official and a former federal drug enforcement agent.
A senior administration official said while the decisions were made during Clinton's presidency, Bush had accepted Gonzales' recommendation and 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 ``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 claim would be the latest in a string of efforts by the new administration to restrain the flow of information to Congress about private deliberations.
Vice President Dick Cheney (news - web sites) has rebuffed requests by the General Accounting Office (news - web sites) and a Democratic congressman to divulge information about people he met with and how he helped develop Bush's energy policy.
And a Senate committee chaired by Sen. Joseph Lieberman (news - bio - voting record) was initially turned down when it demanded several documents detailing the administration's decision to review regulations enacted by Clinton. Eventually, the administration allowed the committee to review the memos, but an aide to Lieberman said officials sent a clear message they would assert their right to withhold documents.
Ashcroft indicated last week the administration intended to reverse the practice of sharing prosecutors' deliberative documents with congressional committees.
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 then-Attorney General Janet Reno (news - web sites) advised Clinton in 1999 that he could invoke the privilege to keep from disclosing documents detailing department views on 16 pardon cases.
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 courts would have to balance the president's right to confidential advice against Congress' right to oversight. Feldman 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 the debate.
Clinton's former chief of staff, John Podesta, said most new administrations test the limits of congressional oversight then conclude it is better to reach a negotiated settlement.
``Ultimately the public loses faith in fair administration of justice from over-claims of executive privilege, especially in matters that don't have to do with direct advice to the president,'' Podesta said. ``It appears to me that every administration has to learn that the hard way.''
I believe this was demonstrated at least twice in the 1990s quite effectively.
Oh, wait. They published a report. There ya go ... some 'pugnity.
This is going to act like the FBI files did under Clinton. "Don't mess with us, or we will release these documents, when the timing suits us."
Not everything in government is his business, nor is it yours.
Why don't you trot yourself down to your state courts building and try to get a transcript of the deliberations of prosecutors? They work for you, too, you know.
I do think we need the specifics here which Solomon didn't give us.
If we are talking about the Robert Ray office closure and his decision not to indict with his full report to be issued after AG review....and we are talking about Burton wanting to revisit all decisions then we are covering the whole concept of Prosecutorial Discretion and Secrecy, both with and without the Grand Jury.
Burton can persue...Bush can defend his AG Office oversight of the Independent Council's last months through Executive privelige and we can all read the report when it is out and them put up the cry for specifics where due.
Management by Congressional Committee was one of the chief reasons the Constitution was written. It didn't work in the Continental Congress or under the Articles.
Bush may want the information on Clintons' criminality in the sunlight but not at the expense of having Congress run roughshod over his Justice Department throughout all future years.
We need the specific of the exact issues before I feel right in going anymore strongly in one direction or another...I'm just appaled by Burton's "oversight" comment made in such a sweeping manner.
I guess your mama never told you "no."
Whatever else they are doing, they sure are making the Clintonistas look legit.
I am also not immune to the precident setting nature of certain actions on the part of the Executive Branch either. If we were talking about a national security issue where state secrets might be at risk, I might be more sympathetic to Bush's claim. What we have here is a criminal investigation. And unless Bush is actually trying to claim that an open inspection of the investigations of Clinton is going to damage his ability to rule, I can't see his logic on this. Here's why. Even Clinton waved Executive Privilege at least once, explaining that he was doing it on a one time only basis due to the nature of the requests. Why couldn't Bush?
It seems as if their sacred "principles" only apply when convenient. I would love to see their reaction if the White House demanded to see all of the internal memos from Ron Paul's office.
Excellent analysis.
Most of the folks who are screaming about Bush being worse than Clinton, yada yada, yada, practically curse the ground he walks on, never wanted him to win and will spend the rest of his two terms jumping on every move he makes and calling it the end of the world and Bush a traitor or similar. It's so predictable.
Of course, anyone who dares to even give the man the benefit of the doubt in any way will be blasted all over the room - as we see here. It gets quite nasty, such is the hate for George W. Bush from these chest-thumping, self-righteous 'convenient constitutionalists', as you would have them. Of little consequence overall but as I said, quite predictable.
I certainly don't believe this one instance of executive privilege being used makes G. W. Bush the monster and Gore-clone some of the more hysterical among us claim. I also believe the country will survive this particular case of executive privlege being involked as it has before, in every administration, despite the sky-is-falling hyperventilating screeds we see from the Bush-haters. Still, the unrelenting animus toward the President is a bit daunting, but then, he's a Republican, his name is Bush and he won an election, which seems to really drive some people a bit mad. Interesting. Of course, it's really all about upholding the constitution, isn't it? Right. Got it.
The question is, were the decisions themselves criminal acts. We're trying to find out why Clinton's people decided not to prosecute. IOW, we're trying to find out if there was a cover-up by the Clinton administration (LOL -- as if we don't already know), but for some reason the new administration has decided that we shouldn't have access to the (potentially) incriminating information.
While I am still very happy, overall, with Bush (I guess, compared to what????), as an attorney, I am troubled by this decision. As I was very disappointed by the caving on school vouchers. AS for stem cell research, I do think it was a good, principled compromise that had the advantage of giving a prime-time speech educating Americans on pro-life issues.
I still follow Bush in the White House from postings here, and I am so thrilled to have him there after Clinton...but that doesn't mean that pro-Bush posters are all mindless robots.
This decision does not bode well for the future. Again, Thank God for FR, because without it, communication--and action--like this is not possible. Next we'll see some pro-Bush publications suing Jim Robinson, trying to shut him down.
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