The American Mind

Last time I checked the President can’t pick and choose what laws he wants enforced. That’s what Bush administration lawyers are threatening to do with possible contempt of Congress charges:

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. “And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.”

The law says U.S. attorneys have a “duty” to act. In their oath they promise to “support and defend the Constitution of the United States.” Not following a law that hasn’t been shown to be unconstitutional would violate their oath.

While not a legal scholar Alexis de Tocqueville has something to say on this matter:

But in the exercise of his authority he [the President] is not perfectly independent; the Senate takes cognizance of his relations with foreign powers, and of his distribution of public appointments, so that he can neither corrupt nor be corrupted.

Orin Kerr guesses,

that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process.

“Bush to Congress: The DoJ Only Has to Prosecute the Laws that I Like (Executive Privilege Edition)”

“Executive Privilege Trumps All”