The investigation into the firing last year of eight U.S. attorneys could soon be moving from congressional hearing rooms to the courts. Congress is threatening to hold former White House Counsel Harriet E. Miers in contempt of Congress for failing to honor a congressional subpoena. Miers, acting on orders from President Bush, cited the doctrine of executive privilege in explaining her decision not to appear before a House panel last week. Congressional leaders have given her until Tuesday to change her mind.
Here’s a primer on executive privilege and how a congressional contempt proceeding might play out.
Question: What is executive privilege?
Answer: Much like the privilege that protects conversations between a lawyer and client, executive privilege protects communications of the president and aides within the executive branch of government. Executive privilege is rooted in the separation-of-powers doctrine in the Constitution. The idea is that the executive should not have to disclose communications to other branches of government that deal with policymaking and the exercise of the executive branch duties.
Q: What areas does executive privilege cover?
A: Over the years, presidents have staked out broad areas in which to assert the privilege, including foreign relations, military affairs, law enforcement investigations, and a sort of catch-all area covering confidential information that reveals the executive’s “deliberative process.”
The deliberative-process privilege is at the center of the U.S. attorneys fight. Administrations defend the privilege on grounds that such internal policymaking debates should be off-limits because presidential aides would not give candid advice if they knew the information could become public some day.
Q: Can Congress ever obtain any of this deliberative information?
A. Usually, Congress and the president, after weeks or months of wrangling, find ways to work it out because of public and political pressure.
Q: What if neither side backs down? How does the contempt process work?
A: The committee that issued the subpoena -- the House Judiciary Committee in Miers’ case -- would first vote on finding her in contempt. Then the contempt question would be put to a vote of the full House. If the House found Miers in contempt, the matter would be referred to the U.S. attorney for the District of Columbia for possible prosecution.
Q: Would the U.S. attorney actually file charges?
A: That’s uncertain. The U.S. attorney is an arm of the Justice Department, which has already indicated it thinks Bush does not have to turn over documents or testimony about the firings.
On the other hand, U.S. attorneys are supposed to be independent. (Ironically, that is what started the whole flap: Congress believed the eight fired prosecutors were dismissed because they acted too independently.)
Q: Who would win if the U.S. attorneys case went to court?
A: The courts have indicated that they would decide who wins by weighing the need for independence by the executive branch against the oversight role of Congress.
Though there is debate on this issue, most experts seem to believe the scales tip in favor of Congress.
The main White House argument has been that Congress has no business prying into the decision to fire the U.S. attorneys because the president has the power under the law to hire and fire the prosecutors for any reason he wants.
But the president does not have the right to fire the attorneys for improper reasons.
Some of the fired prosecutors say they believe they were fired improperly because they did not pursue cases in Republican Party interests.
Q: Who was the last administration official found in contempt of Congress?
A: The administrator of the Environmental Protection Agency under President Reagan.
The House held Anne Gorsuch in contempt in 1982 after Reagan ordered her not to turn over to Congress documents concerning enforcement of hazardous-waste laws.
The case was referred to the U.S. attorney, who refused to prosecute.
Q: What is the penalty for contempt of Congress?
A: The statute sets the penalty for the offense, a misdemeanor, at one to 12 months in jail and $100 to $1,000 in fines.
Q: Does Congress have options other than to refer the contempt case to the U.S. attorney?
A: It could pressure the Justice Department to appoint an independent counsel to investigate whether to bring charges.
Congress could also conduct an “inherent” contempt proceeding.
In that instance, the person charged with contempt would be brought before the House or Senate by the sergeant-at-arms and tried in chambers.
This extraordinary procedure has not been used since the 1930s.