THE BLOG
06/10/2008 05:12 am ET | Updated May 25, 2011

Executive Privilege: Let Congress's Contempt Suit Proceed

In 2001, three economists won the Nobel Prize in Economics for a simple yet powerful insight: When people bring different information to the table, the imbalances in their knowledge create frictions, whether in deal-making or personal relationships.

Today, one such informational asymmetry -- where one party knowing a lot more than the other -- is taking on constitutional dimensions, and the Administration's efforts to use that asymmetry to its advantage threatens the integrity of the federal government, now and in the future.

Among the three branches of government, it is today the executive that generates the lion's share of information and also poses the largest risk to individual liberties. In a dangerous world, it is the executive that is assigned the tools to respond to that danger -- be it public corruption, reliance on foreign oil, or terrorism. Hence, it is also the branch that poses the greatest risk to our own liberties and the branch in greatest need of oversight.

Because presidential elections every four years are simply not fine-grained enough to pick out and condemn abuses and criminality, there is a need for more routine accountability devices.

But this particular Administration is now using "executive privilege" in novel ways that block the routine forms of accountability from moving forward. The result is an unhealthy stalemate that is sapping the incentive of executive branch officials to follow the law. .

Since Watergate, few have doubted that government officials occasionally violate the criminal law for petty partisan ends. Yet, even in areas in which civil rights and civil liberties are at stake, it is unclear how, in practical terms, such wrongdoing ought to be investigated. Congress is constitutionally charged with oversight of the Executive Branch. But it cannot possibly scrutinize every single executive act.

This is especially true given the executive branch's spectacular growth over the past 80 years. Unlike the first 150 years of American history, the postwar era has been characterized by a swelling federal bureaucracy, which has taken responsibility for almost every area of life--from drug enforcement to mortgage policy, from flood protection to the countering of novel terrorist threats. Even since the Nixon era, the work of the federal government has expanded greatly, increasing too the opportunities for waste, fraud, and abuse.

Determining how to police effectively this massive and ever-growing bureaucracy is a matter of increased urgency due to the encroaching election and the questions left unresolved from the 2006 firing of nine U.S. Attorneys. Credible allegations indicate that these prosecutors were forced out in relation to efforts to use federal prosecutions to influence congressional election results. While public interest in that sordid tale has dimmed, the coming 2008 election raises not merely the possibility of fresh meddling, but also the risk that the current administration--and the information in its possession--will leave office without a full accounting. .

Congressional and journalistic efforts to determine who ordered any partisan interference have been stymied. Officials from former Attorney General Alberto Gonzales to former White House political director Sara M. Taylor testified before congressional but didn't answer crucial questions about who ordered the firings and why. Glaring omissions--and Mr. Gonzales's sixty-four instances of "memory loss" in one sad April 2007 hearing--strongly suggest the White House still owes the American people straightforward answers.

Yet the White House has steadfastedly refused to provide these answers. Instead, it is blocking subpoenaed officials such as White House chief of staff Josh Bolten and former White House counsel Harriet Miers from speaking in any way that risked effective investigation

To do so, it has invoked the cloak of "executive privilege." When the House of Representatives voted to hold Miers and Bolten in contempt for their failure to comply with congressional subpoenas, moreover, the Justice Department flatly refused to enforce the criminal contempt statute against them.

Now, the House is seeking to enforce the subpoenas itself in the Washington D.C. federal courts. The Administration is taking the extraordinary position that Congress cannot use the federal courts to enforce its own subpoenas.

Even if private litigants can enter the federal courts to seek disclosures from the executive, Justice Department lawyers now argue, Congress--which has a constitutional obligation to investigate and uncover executive wrongdoing--is barred from the courthouse. Short of disruptive and costly tactics such as arresting Bolten and Miers or impeaching the President, government lawyers claim, Congress can do nothing to investigate wrongdoing in the White House.

The White House's effort to stop the enforcement of congressional subpoenas is deeply wrongheaded. No court has ever categorically barred Congress from challenging executive action in the federal courts. To do so now would encourage future presidents to refuse congressional requests for information--knowing that they would never have to justify their refusal to a neutral arbiter--even when actual wrongdoing is at stake. While Congress and the executive have generally reached compromises on access to information before, shutting the courthouse door would destabilize this tradition of negotiation: There would be no longer be a cost to the President for refusing even warranted disclosure.

By refusing to acknowledge its responsibility of candor--especially when substantial accusations of criminality in the executive are on the table--the White House is making a dramatic break from that tradition of accountability and accommodation.

Worse, a refusal to hear the House of Representatives suit would in effect create an area of darkness in the Constitution's heart where executive officials would be free to leverage federal criminal law against partisan enemies, as appears to have happened in Alabama Gov. Don Siegelman's prosecution.

This is hardly a Constitution of checks and balances as the Framers intended. And the implications of such a development resonate far beyond the question of partisan prosecutions.

The Executive Branch is more determined than ever to hold on to its secrets. But this enforced "informational asymmetry," not fully anticipated by the Founding Generation, demands more, not less, legislative oversight and intrusion. Congress has an especially vital role to play in an age of massive domestic surveillance in violation of basic privacy rights and "erroneous" transfers to torture. For if Congress is not permitted to complete its investigation into the U.S. Attorney firings, it is unlikely that it will be able to excavate the facts surrounding other misconduct, such as these grave abuses of national security powers.

The House of Representatives' contempt suit is an important part of the ongoing effort to preserve the Constitution's checks and balances system. Its threshold dismissal before the election would not only deprive the public of information it needs to assess fairly the performance of this Administration. It also risks casting an enduring shadow on the constitutional order.