On July 20, the Bush administration took preemptive action designed
to mute in advance charges of a cover-up in the likely event that the
dispute over present and former White House aides' testimony turns
into a head-on collision with Congress.
Top White House officials told the Washington Post that President
Bush has the power and would use it to bar the Justice Department from
prosecuting contempt of Congress charges against those claiming
executive privilege.
This is a highly controversial claim. Mark J. Rozell, of George
Mason University, told the Post that Bush's assertion of presidential
power "is almost Nixonian in its scope and breadth. . . . It's
allowing the executive to define the scope and limits of its own
powers."
In an interview with the Huffington Post, Harvard professor of
constitutional law Laurence Tribe was highly critical of the Bush
administration's invocation of executive privilege. He described it as
"promiscuous to the point of being frivolous and dangerous to the
survival of the republic," noting that the use of executive privilege
to cover up crimes could be an impeachable offence.
But, Tribe said, it is "within the power of the President" to
determine whom the Justice Department prosecutes and whom it does not,
based on Article II, Section 3 of the Constitution which declares that
the president "shall take care that the laws be faithfully executed."
This, then, is fodder for debate in the presidential campaign
and the Huffington Post surveyed the top Republican contenders to get
their views. Only one, Mitt Romney, was willing to take a stand. Matt Rhoades, Romney's communications director, provided a cautious response:
"If Congress' inquiry is related to the advice that senior staff
gives to the President, that would be an encroachment into the affairs
of the executive branch. There are three co-equal branches of
government. It would be wrong for one branch to impede or interfere in
the workings of another branch. As Governor, Mitt Romney stood up for
the prerogatives of the executive branch, and he will do the same as
President."
Rudy Giuliani, John McCain and Fred Thompson all ducked the issue.
The Giuliani campaign wrote in an emailed response: "On
background....Giuliani campaign had no comment at this time." Brooke
Buchanan, press spokeswoman for John McCain: "no comment." Mark
Corallo, spokesman for Fred Thompson: "Fred is not a candidate."
The Republicans will debate on Sunday, and the unwillingness of most
of them to discuss this matter may prompt further questioning before
television cameras. The controversy over executive privilege is
currently on a glide path toward a constitutional confrontation
between the White House and Congress.
The ranks of those in the Bush administration claiming executive
privilege has been growing steadily, and now includes, among others,
chief political aide Karl Rove, White House chief of staff Josh Bolten
and former White House counsel Harriet Miers.
<>By leaking in advance its commitment to barring the Justice
Department from prosecuting on contempt charges aides claiming
executive privilege, the White House is attempting to make such an
order less newsworthy and controversial when and if Bush gives it.
Both House and Senate Democratic leaders and committee chairs have
indicated they are likely to try find one or more top assistants to
Bush in contempt after their refusal to testify and, in some cases,
their refusal to appear before Congress.
White House strategists know that even with such preparation, it will
be difficult for Bush to win public support for an intervention
blocking the normal workings of the legal system - especially after
the strong negative reaction to the commutation of Scooter Libby's 30
month sentence on perjury charges.
Jack Muse contributed to this story.