[NYTr] U.S. Attorney in DC in tight spot

[nytr at olm.blythe-systems.com]

sent by MichaelP (activ-l)

The Salt Lake Tribune - 07/23/2007
http://www.sltrib.com/news/ci_6443592

U.S. Attorney in DC in tight spot

A former Hatch aide, U.S. Attorney in DC is in a tight spot

WASHINGTON -- For months, congressional investigators have been
pursuing allegations that the Bush administration tried to influence
cases handled by U.S. attorneys across the country in ways that would
benefit the Republican Party.

Now that investigation is near an impasse because the administration 
appears again to be telling one of those U.S. attorneys what to do.

The prosecutor, Jeffrey A. Taylor, is the U.S. attorney for the
District of Columbia. Under federal law, Taylor's office is required to
pursue cases in which persons are found to be in contempt of Congress.

With lawmakers on Capitol Hill moving to hold past and present 
administration officials, including former White House counsel Harriet
E. Miers, in contempt for failing to cooperate in the probe into the
firing of eight U.S. attorneys last year, Taylor could soon become a
central figure in the drama.

But the White House and Justice Department are sending strong signals
that they will bar Taylor -- or anyone else -- from prosecuting such a
case. Despite the plain meaning of a federal statute, they believe it
would be impermissible under the law, and violate the doctrine of
separation of powers under the Constitution.

The position is roiling congressional investigators planning their next 
step in the probe, which has hit a wall with the White House's refusal
to turn over documents and make officials available for public
questioning under oath.

It is also leaving Taylor, 42, facing a test of his own independence
from his bosses at the Justice Department.

Taylor is a loyal Republican who has served as a top lawyer for both 
Attorney General Alberto R. Gonzales and former Attorney General John 
Ashcroft. He was originally appointed interim U.S. attorney by Gonzales 
under a law that was repealed by Congress this spring because it did
not allow the Senate to approve his appointment. He was later nominated
by Bush, although the Senate has yet to confirm him officially.

Some legal experts believe Taylor might have to disqualify himself from 
participating in any investigation into the contempt charge because of
his close ties to the administration. He once occupied a fifth-floor
office at the Justice Department that was just a few doors away from
that of former Gonzales counsel D. Kyle Sampson -- a principal figure
in the prosecutor purge who later resigned.

Taylor, a native of northern California, also is a career prosecutor
who once worked as an assistant U.S. attorney in San Diego.

Democratic friends and foes have called him reasonable and thoughtful.

He sparked an internal Justice Department investigation this spring
into whether former Gonzales aide Monica M. Goodling used a political
litmus test to judge candidates for career prosecutor positions -- a
potential violation of federal law. Taylor referred the matter to
investigators after Goodling tried to hold up the application of a
Howard University law graduate who worked in the civil rights division
of the Environmental Protection Agency because she feared he was a
"liberal Democrat." Taylor eventually hired the man.

"We come from different political points of view, and we had healthy 
disagreements and debates and still do on. But I always found him to be
a straight guy and a smart guy," said Steven M. Dettelbach, a former
federal prosecutor and Taylor's roommate at Harvard Law School.

"In a way, he is fairly well situated to be weighing in on this because
he has had direct experience working in both of the two branches that
are going to be at odds here," Dettelbach added. Taylor worked for two
years as an aide to Sen. Orrin Hatch, R-Utah, on the Senate Judiciary
Committee, where among other things, he worked on the USA Patriot Act.

The Justice Department this month first cast doubt on its readiness to 
pursue a contempt case against Miers or others.

Its Office of Legal Counsel issued an opinion saying that Miers did not 
have to appear before the House Judiciary Committee to answer questions 
about the U.S. attorney firings, even though she had been subpoenaed by 
the panel. The legal opinion cited the doctrine of executive privilege.

The department went a step further Friday, circulating copies of a 1984 
opinion issued by the Justice Department during the Reagan
administration. According to the department, the opinion concluded that
the statute under which Congress refers contempt charges to Justice
officials "does not apply to executive officials who assert claims of
executive privilege at the direction of the president." White House
spokesman Tony Snow went further, telling reporters Friday that the
U.S. attorney isn't required to prosecute in such circumstances and
that President Bush would not allow it.

"There are serious separation of powers issues here, and ... the 
legislative branch is not in a position to compel action on the part of 
the executive branch, other than in areas related to its legitimate 
oversight role," Snow said. "In circumstances like this, the 
constitutional prerogatives of the president make it futile and purely 
political for Congress to refer to a U.S. attorney a contempt
citation." Whether Taylor agrees with that view of the law is unclear;
he declined a request for an interview.

Justice Department legal opinions, unless they are expressly disavowed, 
are considered official department policy. By holding this one up as
good law, the department puts Taylor in a difficult spot.

The 1984 opinion in question was issued during a battle over demands
from Congress for Environmental Protection Agency documents concerning 
enforcement of hazardous-waste laws. The House found then-EPA 
administrator Anne Gorsuch Burford in contempt for refusing to turn
over the materials, but the Justice Department refused to prosecute her
in that case.

Some legal experts questioned interpreting the law to mean that persons 
who cite executive privilege for failing to cooperate are exempt from 
prosecution.

On its face, the law clearly instructs the appropriate U.S. attorney
"to bring the matter before the grand jury for its action." The statute
is "unambiguous," said Peter Shane, an Ohio State law professor and
expert in executive privilege.

Shane suggested that the Justice Department appoint a special counsel
to evaluate the merits of the case and the legal arguments.

"The administration could file legal briefs on behalf of the defense,"
he said, "and it would give the defendant an opportunity to raise
executive privilege in defense of nonappearance." White House spokesman
Tony Fratto said Friday that all this discussion was premature, and
that the administration hoped that lawmakers would accept its offer to
provide access to officials and documents -- but in private with no
oaths or transcripts.