Death of Congressional Oversight? by Bruce Fein

Death of congressional oversight?

Bruce Fein
July 24, 2007

Congress' power to oversee the executive branch for lawlessness or maladministration stands at an abyss.

If it neglects to enact a revised edition of the lapsed Independent Counsel Act of 1978, Congress will have been disarmed by President Bush from knowing what the executive branch is doing. Secret government will flourish. And darkness invites executive machinations to violate the law and to destroy political or personal rivals. Remember President Richard M. Nixon's ill-conceived Huston Plan recommending domestic burglaries, illegal electronic surveillances and mail openings of political radicals.

President Bush has announced his intent to decline criminal contempt prosecutions of any current or former executive branch officials who refuse to testify or produce documents demanded by a congressional committee because of executive privilege. The nonprosecution policy was fashioned to benefit Bush loyalists Karl Rove, Joshua Bolton, Harriet Miers and Sara A. Taylor in stonewalling Congress over the firings of United States attorneys. A statute saddles government prosecutors with a "duty" to bring criminal contempt matters "before the grand jury for its action." But President Bush's unfettered discretion to prosecute or not trumps the statute.

The United States Supreme Court declared in United States v. Nixon (1974) that, "the Executive Branch has exclusive authority and absolute discretion whether to prosecute a case." In United States v. Cox (1965), the U.S. 5th Circuit Court of Appeals overturned a district court order directing the United States attorney to file an indictment returned by the grand jury.

The court elaborated: "The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.... [I]t is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."

Under the Nixon and Cox precedents, Mr. Bush also commands constitutional discretion to refuse prosecutions of his subordinates for perjury or corruptly endeavoring to derail a congressional investigation. And given Mr. Bush's notoriety for loyalty to friends — i.e., Alberto Gonzales, Harriet Meirs and Scooter Libby — the prospect he would authorize prosecutions of his acolytes for lying to Congress or destroying subpoenaed documents is inconceivable.

Accordingly, Congress is now powerless to elicit truthful testimony and information from the executive branch by threatening criminal prosecution in federal courts to punish silence or prevarications.

Congress could invoke a previously recognized "inherent" contempt power to hold trials and detain individuals found contumacious. But once regular congressional practice has fallen into desuetude since 1934 for good reason: It combines the power to accuse with the power to adjudicate in violation of the Constitution's separation of powers.

The remedy for the president's absolute prosecutorial discretion is for Congress to pass a modified version of the old Independent Counsel Act. It created a special three-judge panel, selected by the chief justice of the United States and empowered to appoint independent counsels operating outside the president's control, for example, shielded from the president's removal power.

Independent counsels would investigate and prosecute crimes implicating a select circle of executive branch or political party officials who would otherwise have confronted the president with glaring conflicts of interests.

The Supreme Court sustained the constitutionality of independent counsels despite their encroachments on the president's prosecutorial discretion in Morrison v. Olson (1988). Writing for an 8-1 majority, Chief Justice William H. Rehnquist explained that independent counsels unencumbered with conflicts of interest assisted rather than sabotaged the president's unflagging duty to take care that the laws be faithfully executed.

Armed with Morrison, Congress should pass an Independent Counsel Act of 2007, but with a modified universe of crimes within the jurisdiction of independent counsels: namely, criminal contempt, perjury, or corruptly endeavoring to obstruct a congressional investigation by executive branch officials. The independent counsels would be appointed by three-judge courts at the behest of Congress, would avoid conflicts of political interest and would preserve a separation of law enforcement from lawmaking or adjudication.

President Bush would undoubtedly veto independent counsel legislation. But if Republican lawmakers fix their imaginations on Hillary Clinton in the White House and Webster Hubbell as attorney general in 2009, they may be inspired to override the veto with their Democratic colleagues. Statesmanship is often the child of expediency.

If Congress turns the other cheek to President Bush's latest assault, it will have plunged into irrelevancy.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates, chairman of the American Freedom Agenda and author of the forthcoming "Constitutional Peril: The Life and Death Struggle of our Constitution and Democracy."