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With All Due Respect to the WaPo

Amy Goldstein was one of the nicest people covering the Scooter Libby trial and Dan Eggen has been doing excellent work covering the USA Scandal. But their article on the White House’s assertion that no US Attorney can take up the contempt charges that HJC is about to dump on Harriet and Josh Bolten misses some key details. Goldstein and Eggen write:

Bush administration officials unveiled a bold new assertion ofexecutive authority yesterday in the dispute over the firing of nineU.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.


In defending its argument, administration officials point to a 1984opinion by the Justice Department’s Office of Legal Counsel, headed atthe time by Theodore B. Olson, a prominent conservative lawyer who wassolicitor general from 2001 to 2004. The opinion centered on a contemptcitation issued by the House for Anne Gorsuch Burford, thenadministrator of the Environmental Protection Agency.

Itconcluded: "The President, through a United States Attorney, need not,indeed may not, prosecute criminally a subordinate for asserting on hisbehalf a claim of executive privilege. Nor could the Legislative Branchor the courts require or implement the prosecution of such anindividual."

In the Burford case, which involved spending on theSuperfund program, the White House filed a federal lawsuit to blockCongress’s contempt action. The conflict subsided when Burford turnedover documents to Congress.

The Bush administration has notpreviously signaled it would forbid a U.S. attorney from pursuing acontempt case in relation to the prosecutor firings. But officials atJustice and elsewhere say it has long held that Congress cannot forcesuch action.

And here are some details they miss, from Kagro X, whose batting average on Bush obstruction has been better than anyone’s:

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.