FOR THE FIRST time, the House is set to vote on criminal contempt charges against a senior White House official who refused to hand over papers demanded by a congressional subpoena.
The reason? Jack Quinn, counsel to the president, obeyed President Clinton's order not to produce internal White House documents related to the dismissals at the White House travel office in 1993.The president, following a procedure established by President Ronald Reagan, wanted first to conduct a review with his attorney general to see if any papers should be withheld on the basis of executive privilege.
The House panel investigating "travelgate" has already received more than 40,000 pages of White House documents. Still, its members also insist that the White House turn over files generated in preparation for the committee's investigation.
The chilling effect of such a subpoena on the president's ability to defend himself and to discharge his duties as chief executive can hardly be exaggerated. There might as well be congressional wiretaps and video monitors in the Oval Office and throughout the White House.
It is tempting to speculate that House Republicans are so obsessed with the short-term political advantages of crying "White House cover-up" that they do not care about long-term damage to our system of checks and balances or to the ability of future presidents to function, including Republicans who may face a Democratic majority in Congress.
That was the power alignment in 1983 when the Democratic-controlled House approved criminal contempt charges against Anne Gorsuch, the head of the Environmental Protection Agency, for refusing to produce internal EPA records subpoenaed by Congress in its investigation of the agency's enforcement policies. On the advice of the Justice Department, Reagan invoked executive privilege and ordered Gorsuch not to reply.
The Republican Justice Department's 1984 written opinion squarely supports Clinton's directives to his counsel. Indeed, the opinion specifically states that the century-old criminal contempt-of-Congress law does not apply to executive branch officials directed by the president not to comply with a subpoena.
The sensible way to resolve such issues is by negotiations between the executive and legislative branches. If talks fail, Congress can bring a civil action so a federal court could decide if a subpoena's scope compromises an executive privilege claim.
By the way, the 1970s-era law that allows Congress to initiate such civil suits includes an exception for subpoenas issued to White House aides acting in their official capacity. That provision was adopted because Justice Antonin Scalia, then a Justice Department official, convinced Congress that the judiciary should not rule on executive privilege issues but should allow the president and Congress to work them out. His reasoning would apply to criminal contempt actions as well as civil suits.
Either a civil action or negotiations would be more effective than jailing Quinn, who would undoubtedly continue to uphold the constitutional rights of the president and his successors.