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.''
Some of Clinton's executive privilege claims were clearly fatuous. But not all.
There is a natural contention between Congress and the Executive Branch. I don't think it's reasonable to assume that Congress has a right to see every transcript of every conversation held in the White House or the Justice Department. Especially if it's going to be released to the press upon receipt.
This is a game of chicken and an attempt by Bush to protect as much as he can. Burton will negotiate and there'll be a mutual agreement for the release of some documents or redacted documents.
This happens in every administration.
But unlike you, sinkspur, DoughtyOne has NEVER, EVER excused criminal conduct because of his lack of objectivity. You, on the other hand do excuse it. In fact, revel in it. You bathe in it. You welcome it. I will take DO's brand of objectivity over yours anyday.
When you read the Constitution, it's amazing how Congress and its actions and duties stand out head and shoulders above the chief executive.
I believe that because they are responsible for appropriations of monies, under various laws, they would therefore be responsible for oversight of the departments expending such funds.
I don't want Will to Power to govern a'la the French Committee of Terror. Corruption can be fought without ignoring our Republic's structure. Instead let's adhere to it.
"Executive privilege", like any other claim of privacy by anybody else, has merits. But klinton perverted that, just like everything else he touched.
Where have I excused criminal conduct?
You're letting your shotgun mouth get ahead of your bb gun butt.
You're not objective about Bush either.
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.
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