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Separation of Powers

Sweeping Privilege Power Claimed

Posted Jul 20, 2007 10:56 AM CDT
By Debra Cassens Weiss

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In a “bold new assertion of executive authority” the Bush administration contends the Justice Department has no power to pursue contempt charges on behalf of Congress in response to the president’s claim of executive privilege, the Washington Post reports.

A senior administration official who spoke on condition of anonymity made the claim in an interview with the Post. "A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," he said. “It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

The Post says the position thwarts congressional Democrats who want to pursue contempt proceedings to obtain information in the controversy over the firing of at least eight U.S. attorneys. Federal law says a contempt citation by the House or Senate should be submitted to the U.S. attorney in Washington, D.C., who has a duty to bring the matter to a grand jury.

The anonymous official cited a 1984 Justice Department legal opinion issued when Congress issued a contempt citation against Anne Gorsuch Burford, administrator of the Environmental Protection Agency. Burford eventually turned over the disputed documents about the agency’s Superfund program, so the stance was not tested in court.

Senate Majority Leader Harry Reid, D-Nev., called the government assertion “an outrageous abuse of executive privilege."

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