T he Bush administration, thrown deeply onto the defensive by its misadventure in Iraq and alleged politicization of the Justice Department, is engaged in an unprecedented reliance on the theory of “the unitary executive” to survive its remaining 18 months in office.
The theory?s latest application is in its insistence that Bush?s Justice Department cannot be ordered to pursue contempt charges from Congress that the White House is stonewalling over the firing of nine U.S. Attorneys.
The administration has refused to let certain White House officials, former and present, to testify in the investigation into charges that the Attorneys were discharged for failure to advance its political objectives.
The basic White House argument is that the president?s invoking of executive privilege to prevent former and present subordinates testifying effectively closes the door on their grilling. Such interrogations, the White House holds, would imperil Bush?s ability to obtain unfettered advice from such aides.
It?s an old presidential position, usually but not always honored by Congress, that often has led to compromise on release of information sought, short of actual contempt citations. But this president, in shades of the Watergate confrontation between the executive and legislative branches over the Nixon White House tapes, is throwing down the gauntlet.
Bush?s defiance is part of his broader invocation of the unitary executive concept in conducting the war in Iraq, based on his designation in the Constitution as “Commander in Chief of the Army and Navy.”
His Justice Department, first under Attorney General John Ashcroft and then under his beleaguered successor, Alberto Gonzales, has claimed that this role and attendant responsiblities carry with them virtually absolute power in wartime.
Among the first times it was invoked was in 2002, nearly a year before Bush?s invasion of Iraq. A Justice Department official, John Yoo, a principal advocate of the unitary executive, told the Senate Judiciary Committee that although the Constitution stipulates that Congress has the power “to declare war,” a president under the theory could act without such a declaration.
Challenges to the theory are also at the heart of the current efforts in Congress to force a change in the course and conduct of the war in Iraq. Advocates point to the Constitution?s grant of power to Congress to “raise and support” the military forces and “to make Rules for the Government and Regulation” of them.
This grant, many constitutional scholars have argued, carries with it the right to oversee the proper executive implimentation of war powers it may authorize short of formally declaring war, as it did in 2002. Also, they say, Congress can later alter the military mission it has authorized, as it now seeks to do.
This interpretation is at the core of the congressional efforts, beaten back by Bush so far, to call for a reauthorization of the war under revised missions, or to set timetables for withdrawal of U.S. troops in Iraq. At the same time, Congress has declined to use its absolute constitutional power of the purse to defund the war, which does not yet have wide approval in Congress or, according to polls, among the public.
The increasing reliance on the theory of the unitary executive underscores the bunker mentality that has seized the Bush White House, also reminiscent of the Watergate days of President Richard M. Nixon. Then, a unanimous Supreme Court decision forced Nixon to turn over to the Watergate special prosecutor the tapes that led to his resignation under peril of impeachment.
A similar confrontation on congressional contempt charges between the executive and legislative branches occurred in the Reagan administration, when it filed a suit challenging a House citation against the head of the Environmental Protection Agency. The clash ended in release of pertinent documents to Congress.
In the Justice firing cases, the White House has already turned over voluminous related papers, but the congressional investigators have not been satisfied. The question now is whether the contempt citations can produce the witnessessought, short of a court fight that would only deepen the already bitter atmosphere between the Bush executive and the Democratic-controlled legislative branches.
Jules Witcover, a Baltimore Examiner columnist, is syndicated by Tribune Media Services. He has covered national affairs from Washington for more than 50 years and is the author of 11 books and co-author of five others, on American politics and history.
