Bush Refuses to Turn Over Justice Records to Congress

President Bush on Thursday withheld from Congress an array of documents sought by lawmakers in cases ranging from Clinton-era fund-raising scandals to a decades-old murder in Boston, provoking outrage from Republicans and Democrats alike.

The president said he was refusing to turn over the information because “congressional access to these documents would be contrary to the national interest. . . .”

Bush’s invocation of executive privilege was the latest salvo in an escalating tussle between Congress and the president over constitutional prerogatives.

“This is not a monarchy,” fumed Rep. Dan Burton (R-Ind.), a longtime Clinton nemesis. Rep. Henry A. Waxman of Los Angeles, the ranking Democrat on the investigative committee that Burton chairs, decried what he called “an imperial presidency.”

The controversy was a sharp reminder that even as much of the nation--and Congress--strongly back Bush in the counter-terrorism war, lawmakers are growing restive over their treatment by a president who, even before Sept. 11, had clashed with them over the powers of the executive branch.

More recently, some lawmakers have argued that Bush’s reach exceeded his grasp--politically, if not legally--by not consulting with Congress before issuing his order that would allow the use of military tribunals to prosecute foreign terrorists.

The new dispute over documents appears headed for court, and one expert on executive privilege said the White House may have overstepped its authority.

“There are cases when Congress should not have access to certain executive branch information, but this is not a valid use of executive privilege,” said Mark J. Rozell, a professor at Catholic University in Washington and author of a 1994 book on the issue. “The Bush administration is trying to expand [the] scope of that privilege, trying to push the principle further than it currently exists.”

The White House released Bush’s directive ordering Atty. Gen. John Ashcroft to withhold the documents as the House Government Reform Committee convened a long-delayed hearing on the FBI’s handling of confidential informants in Boston.

The panel’s inquiry stems from allegations that FBI agents hid testimony that would have cleared a man charged with murder because they wanted to protect an informant. The man was convicted and spent 30 years in prison.

The committee also had issued subpoenas seeking confidential Justice Department documents on other cases, including the lengthy investigation into fund-raising improprieties by the Clinton campaign in the 1996 presidential election.

But Bush said disclosure of such material “would inhibit the candor necessary to the effectiveness of the deliberative processes by which the department makes prosecutorial decisions. Moreover, I am concerned that congressional access to prosecutorial decision-making documents of this kind threatens to politicize the criminal justice process.”

The president noted that Justice officials had privately briefed the panel, explaining the rationale behind various prosecutorial decisions.

At the White House, spokesman Ari Fleischer said that Bush’s executive privilege claim is “not uncommon,” noting that his three immediate predecessors had claimed the privilege. “President Reagan three times exerted executive privilege; President Bush two times exerted executive privilege; and President Clinton four times,” Fleischer told reporters.

“In this case, where after the administration had already turned over 3,500 pages to [the House committee], they continued to pressure the administration to obtain very specific prosecutorial decision-making memorandums that are the heart of the justice process, the heart of the deliberative process that contain uncorroborated, raw information, raw data that prosecutors weigh to decide whether or not to bring a case forward,” Fleischer said.

The release of information, especially in a case that is not prosecuted, could harm innocent people, Fleischer said.

Bush already is at odds with Congress over the White House’s refusal to release details on Vice President Dick Cheney’s energy task force that drafted the administration’s energy legislation behind closed doors and on potential conflict-of-interest information involving the investments of Bush’s senior White House political advisor Karl Rove.

Bush also angered historians by issuing an executive order to restrict public access to the papers of retired presidents.

Thursday’s action by the White House sparked an angry response at the House committee hearing.

“Everyone is in agreement you guys are making a big mistake,” Burton told Justice Department lawyers. “We might . . . take this thing to court.”

Burton added: “This is not a monarchy. The legislative branch has oversight responsibility to make sure there is no corruption in the executive branch.”

Waxman, a Clinton defender during the panel’s probe of the fund-raising irregularities, found himself in rare agreement with Burton. “Clearly, there’s an emerging pattern of a sense that [the Bush administration] can operate without the public or the Congress having the opportunity to see what’s going on. This is troubling because governments should be transparent.”

Professor Rozell believes that Congress would likely prevail in court. “Executive privilege is a legitimate constitutional principle. But usually it applies to decision-making that applies directly to the president and his aides.”