The dispute arises out of claims that the Administration brought partisan politics into decisions about enforcing the criminal laws. One set of allegations is that, in an effort to aid Republican candidates prior to the 2006 election, members of the president's party wanted Democrats targeted for criminal charges--such as alleged voter fraud in the 2004 Washington State gubernatorial election--and they wanted those charges brought fast--as in their attempt to secure quick indictments of New Mexico Democrats that would have helped a Republican seeking re-election to Congress. The second set alleges that nine United States Attorneys were asked to resign because they had not been sufficiently compliant with the Administration’s desire to use the criminal law for political purposes. In an effort to gather the necessary facts, the House Judiciary Committee issued subpoenas to former White House Counsel Harriet Miers and current White House Chief of Staff Joshua Bolten for documents relating to these matters and, in the case of Miers, her testimony as well.
In most cases in which the Administration disagrees with requests for information from Congress, the parties work out their differences, but they were unable to do so here. Both witnesses were directed by the White House not to appear, based on a blanket assertion that executive privilege applied to every question that might be asked and to every document that might be produced. The House of Representatives then requested that the United States Attorney seek criminal contempt charges against Miers and Bolten, as federal law provides, but the Attorney General, to no one’s surprise, said no. The House then raised the stakes by voting to authorize the Judiciary Committee to bring suit to enforce the two subpoenas.
Amidst the various legal arguments, there is one main difference between the parties. The Administration contends that the courts have no business refereeing these kinds of disputes between Congress and the president and that Congress should negotiate with the Executive Branch over its requests for testimony and documents, and if it cannot reach accord, it has available other means, discussed further below, to apply pressure to obtain what it wants. The Judiciary Committee, on the other hand, argues that it is the job of the courts to resolve legal issues involving competing constitutional claims--in this case, the scope of executive privilege versus Congress’s need for information to enable it to legislate wisely--and that peaceful resolution in the courts is better than going to war with the President. Although this case involves Congress going to court, the principle would also seem to apply when it is the president who wishes to prevent a witness from testifying before Congress--for example, a disgruntled former White House staffer--and he seeks a court order forbidding the testimony on grounds that to answer the questions would violate a privilege held by the president.
If the courts were not available in suits like this, what alternatives would Congress have? One power, long recognized but not invoked in many years, is to have the Sergeant at Arms arrest the recalcitrant witnesses and lock them up until they change their minds. Aside from the unseemliness of that option, the president would certainly direct the Justice Department to seek a writ of habeas corpus to test the legality of the arrest, and the same parties would be back in court on the same legal issues. Unless the Administration would have the courts decline to decide that case, its position on whether this dispute is appropriate for judicial resolution seems inconsistent, or perhaps even hypocritical.
Supporters of the “judicial hands off” view also point to other weapons that Congress has, short of locking up a witness who is, after all, doing no more than following the president’s directions. One option sometimes suggested is to not confirm judges or executive branch nominees, but that can only work if it is the Senate that seeks the information, since the House has no role in the confirmation process. Other suggestions include withholding funding for Administration programs, but, short of shutting down the federal government, that is theoretically possible only if the House and Senate are controlled by the same party, and if they can win a veto override fight with the President. But more fundamentally, why should Congress have to invoke the inter-branch equivalent of nuclear war, with all of the fallout on innocent citizens, when there is a readily available judicial alternative to resolve the differences of legal interpretation of the Constitutional prerogatives of both branches?
Finally, the Administration falls back on the way that these disputes have been historically resolved: by negotiation. However, negotiation does not take place in the abstract. It is done, as lawyers often say, “in the shadow of the law,” meaning that each side tries to predict what the courts will decide and then bargains on that basis. But if the courts were to rule that Congress cannot go to court to enforce its views of executive privilege, then, as the Administration admitted in a burst of candor in its reply brief, a definitive ruling “would surely alter those negotiations.” Translation: the White House would no longer have to negotiate.
It is generally in the interest of both the legislative and executive branches to resolve their disputes amicably, without going to court. But if the federal courts were to rule that they are not available to resolve disputes of this kind, then Congress would have little choice but to make war against the President when it was denied access to information that it believed it needed to carry out its constitutional duties. And that would be far more disruptive for everyone than would a very occasional lawsuit, seeking to enforce a congressional subpoena to the executive branch.
Alan B. Morrison is a Washington lawyer who assisted the Office of the General Counsel to the House of Representatives in the case discussed in this essay.
By Alan B. Morrison