[NYTr] Power Without Limits (NYT Edit'l)

[nytr at olm.blythe-systems.com]

sent by Trent Schroyer

The New York Times - Jul 22, 2007

EDITORIAL 

Power Without Limits

The Bush administration, which has been pushing presidential power to
new extremes, is reportedly developing an even more dangerous new
theory of executive privilege. It says that if Congress holds White
House officials in contempt for withholding important evidence in the
United States attorney scandal, the Justice Department simply will not
pursue the charges. This stance tears at the fabric of the Constitution
and upends the rule of law.

Congress has a constitutional right to investigate the purge of
nine United States attorneys last year. And there is no doubt that
the investigation has unearthed improprieties: several administration
officials have already admitted illegal or improper actions involving
the politicization of the country's chief law enforcement agency.

But the administration has been extraordinarily defiant toward
Congress's legitimate requests for information. The low point came
recently when Harriet Miers, the former White House counsel, refused
even to show up in response to a Congressional subpoena. Some of
the questions she would have been asked might have been protected
by executive privilege, but others no doubt would not have been.
Ms. Miers had no right to ignore the entire proceeding.

The next question is how Congress will enforce its right to obtain
information, and it is on that point that the administration is
said to have made its latest disturbing claim. If Congress holds
White House officials in contempt, the next step should be that the
United States attorney for the District of Columbia brings the
matter to a grand jury. But according to a Washington Post report,
the administration is saying that its claim of executive privilege
means that the United States attorney would be ordered not to go
forward with the case.

There is no legal basis for this obstructionism. The Supreme Court
has made clear that executive privilege is not simply what the
president claims it to be. It must be evaluated case by case by a
court, balancing the need for the information against the president's
interest in keeping his decision-making process private. Mark Rozell,
an expert on executive privilege at George Mason University, calls
the administration's stance "almost Nixonian in breadth," because
of its assertion that "the mere utterance of the phrase executive
privilege" means that "no other branch has recourse."

The White House's extreme position could lead to a constitutional
crisis. If the executive branch refused to follow the law, Congress
could use its own inherent contempt powers, in which it would level
the charges itself and hold a trial. The much more reasonable route
for everyone would be to proceed through the courts.

This showdown between a Democratic Congress and a Republican president
may look partisan, but it should not. In a year and a half, there
could be a Democratic president, and such extreme claims of executive
power would be just as disturbing if that chief executive made them.

Congress should use all of the tools at its disposal to pursue its
investigations. It is not only a matter of getting to the bottom
of some possibly serious government misconduct. It is about preserving
the checks and balances that are a vital part of American democracy.

Copyright The New York Times Company