From American Progress:
Bush's Executive Priviilege
As the Bush era winds down, the President is asserting executive privilege to impede congressional oversight of his administration. With a contempt of Congress vote looming by Rep. Henry Waxman's (D-CA) House Oversight and Government Reform Committee, President Bush asserted executive privilege last Friday morning, blocking the committee's subpoenas for documents relating to the Environmental Protection Agency's (EPA) decision to reject California's efforts to reduce greenhouse gas emissions and to override scientific recommendations on ozone standards.
Waxman found Bush's action on Friday "extraordinary," especially since EPA Administrator Stephen Johnson "has repeatedly insisted he reached his decisions on California's petition and the new ozone standard on his own."
n a separate case, lawyers for Congress tried yesterday to convince a federal judge to take the "unprecedented step" and compel the administration to obey subpoenas related to the U.S. Attorneys scandal -- the first lawsuit ever "filed by either chamber of Congress seeking to force the executive branch to comply with a subpoena." Bush had cited executive privilege to prevent former White House counsel Harriet Miers from testifying and White House Chief of Staff Joshua Bolten from turning over documents.
As with President Nixon's attempts to block the Watergate investigation and President Reagan's efforts to hide the EPA dioxin scandal, Bush appears to be using his assertion of executive privilege as a tool to cover up his administration's illegal actions.
'ABOVE THE LAW':
Bush's assertion of executive privilege on Friday put a halt to the contempt vote that Waxman's committee had scheduled for Johnson and White House Office of Management and Budget (OMB) regulatory administrator Susan Dudley.
Despite the White House's complaint that such a vote represented a "sudden, significant escalation," Waxman was investigating the EPA's decisions for months. His committee's investigations have revealed that Johnson's decision to reject California's waiver petition was made only after discussions with the White House.
Similarly, the Washington Post reported that Bush personally intervened in a between Dudley's office and the EPA, prompting the EPA to reject scientific recommendations for smog standards. What is being withheld is Bush's legal justification for his actions -- important because the Clean Air Act strictly defines permissible considerations for air quality standards and waivers. The documents withheld from Congress include 1,956 OMB documents regarding Bush's ozone decision, 25 EPA documents on the California waiver, and 71 more that are being turned over with the "identities of the meeting participants" redacted.
On May 20, Johnson and Dudley appeared before the committee without the subpoenaed documents and refused to answer questions about Bush's involvement. At the hearing, Waxman sharply criticized Bush's role, saying, "The president does not have absolute power, and he is not above the law."
Following Bush's executive privilege claim, Waxman declared that he would "talk with my colleagues on both sides about this new development and consider all our options before deciding how we should proceed." Rep. Dennis Kucinich (D-OH) said the "committee should approve a contempt resolution immediately," and "reiterated his call to impeach the president" to hold the administration accountable.
The courts are reluctant to get involved, as Judge John D. Bates said in Monday's hearing on congressional subpoeanas: "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance."
The House counsel asked the court to "order Miers to testify and allow her to invoke executive privilege only on a question-by-question basis" and for Bolten "to provide a log of White House documents and to explain why each was being withheld." Lawyers for the administration argued top advisers deserve "absolute immunity" and Congress should use political tools instead of the courts, such as "withholding funds for the Justice Department or stalling presidential appointments."
When asked in March if Congress would continue the U.S. attorneys investigation if it continues into the next administration, House Speaker Nancy Pelosi (D-CA) said, "Absolutely. ... [W]e might as well just shred the Constitution and forget about taking the oath of office if we’re just going to do it for a Republican President and not a Democratic President."
The invocation of executive privilege, needed to protect presidential confidentiality to preserve separation of powers, is relatively rare. Nixon and Reagan claimed it in three cases; Ford, Carter, and George H. W. Bush each once. President Clinton invoked executive privilege repeatedly during the investigations of the White House during his second term.
Friday's assertion of executive privilege marks Bush's fourth case. Bush invoked the privilege in the U.S. Attorneys scandal to prevent Josh Bolten from turning over documents, and to protect Harriet Miers, Sara Taylor, Karl Rove, and Scott Jennings from being forced to testify.
This February, the House voted to hold Miers and Bolten in contempt of Congress. Attorney General Michael Mukasey, however, declined to investigate the issue, spurring the civil lawsuit. In May 2004, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the documents were not covered by executive privilege.
Although the administration has resisted turning over documents relating to several other cases, such as the Pat Tillman and Energy Task Force investigations, executive privilege was not explicitly asserted. Instead, the White House has used what the Reporters Committee for the Freedom of the Press dubbed "quasi-executive privilege," invoking phrases like "Executive Branch confidentiality interests" and the "constitutional duties of the Executive Branch."