[NYTr] More Bush/Congress Court Fights Likely

[All the News That Doesn't Fit]

sent by MichaelP (activ-l)

AP via The Guardian - Aug 6, 2007
http://www.guardian.co.uk/uslatest/story/0,,-6829968,00.html

More Bush/Congress Court Fights Likely

By CHARLES BABINGTON
Associated Press Writer

WASHINGTON (AP) - A court decision concluding that federal agents went 
overboard   in  searching  a  congressman's  office  almost  certainly 
presages  more  legal  showdowns over the Bush administration's fierce 
battle with Congress for control of information.

The  administration  repeatedly has rebuffed Congress' efforts to look 
into  wiretaps, energy policy, prosecutors' firings and other matters, 
while  claiming its own right to probe alleged congressional misdeeds.
The efforts  have  been  extraordinary,  even by the standards set by 
secretive  and  combative presidents such as Richard Nixon, some legal 
scholars say.

``Most people feel this has been the most aggressive executive branch, 
maybe  in  the  history  of  the  country,  in  terms of asserting its 
executive   authority,''   said  Carl  Tobias,  a  constitutional  law 
professor at the University of Richmond in Virginia.

The  stakes  have  risen in recent months as the Democratic-controlled 
Congress  began  contempt proceedings against some of Bush's top aides
and suggested a perjury investigation of his attorney general.

At least some clashes appear headed for court, where judges again will 
wrestle  with  a question central to the republic's founding: Where to 
strike  the  balance  between  the executive and legislative branches' 
powers so that one does not ride roughshod over the other?

``I  think you'll find the courts are going to become more involved,'' 
Sen.  Ben  Cardin,  D-Md.,  a  lawyer  who  is on the Senate Judiciary 
Committee,  said  in  an  interview  after  the court decision Friday. 
``This  administration has a well-deserved reputation for arrogance. I 
think they just try to believe that they are not susceptible to checks
and balances.''

Bush and his aides reject such claims. They say it is essential that a 
president   receive   candid  advice  from  advisers  not  subject  to 
congressional  subpoenas.  They  have tried to restore vital executive 
branch  powers  they  feel eroded during the Watergate and Vietnam War 
eras.

Many  congressional  Republicans  support  them, saying Democratic-led 
inquiries too often overreach. ``The legislative branch has focused on 
investigations,   subpoenas,   condemnations,   attacks,   calls   for 
impeachment, calls for contempt,'' said Sen. Kit Bond, R-Mo.

But even Bush loyalists such as Bond say the administration's penchant
for secrecy goes too far in some areas.

Bond,  the  Senate  Intelligence  Committee's top Republican, long has 
urged  the  administration to release a CIA inspector general's report
on the  Sept.  11  attacks.  ``Just  get it out there and get it over
with,'' he said.

Bush drew the greatest bipartisan condemnation, not surprisingly, when
he backed  investigative  tactics  that included an FBI night raid in
2006 of Rep. William Jefferson's offices on Capitol Hill.

The  U.S.  Court of Appeals for the District of Columbia Circuit ruled 
Friday that the Justice Department violated congressional independence
in going  through  a  large number of the Louisiana Democrat's files. 
Jefferson subsequently was charged with bribery.

Top  Republicans,  including  then-Speaker Dennis Hastert of Illinois, 
denounced  the raid and hailed Friday's ruling. ``I felt very strongly 
that  the  separation  of  powers  were breached when that happened,'' 
Hastert said.

Republicans in Congress tend to back Bush more strongly on issues that
do not  hit so close to home. But many Democrats and outside analysts
say the  administration  is  virtually  spoiling  for legal fights to 
re-examine where the executive-legislative balance of power lies.

Democrats  hooted  when  Vice  President Dick Cheney recently asserted 
that  neither  Congress  nor  the  executive  branch  could  probe his 
actions.

Perhaps  the  action  most  likely  to  trigger a showdown over Bush's 
repeated   claims  of  executive  privilege  was  last  month's  House 
committee  vote  to launch contempt charges against former White House 
counsel  Harriet  Miers.  Bush  has  asserted  executive  privilege in 
refusing  to  let  her  testify  in  Congress'  probe of the firing of 
several federal prosecutors.

Legal  scholars  say executive privilege is an imprecise term asserted
by several presidents but never fully settled by the courts. The Miers
case, some  say, could be a good test of how to balance a president's
need  for private advice against Congress's need to oversee executive
branch actions that might include political abuses.

``There  will  be  more  courts,'' Senate Judiciary Committee Chairman 
Patrick  Leahy,  D-Vt.,  said  Friday.  ``This  administration takes a 
position  that  no  administration  has,  certainly  since  Marbury v. 
Madison,  that somehow they are above the law,'' he said, referring to
the 1803 Supreme Court decision establishing judicial reviews.

Bruce  Fein,  a Washington lawyer who was an associate deputy attorney 
general  in  the Reagan administration, fears Congress is not fighting 
hard enough to parry Bush's claims of executive privilege.

``The  Bush administration is close to reducing Congress to wallpaper, 
when  it  comes  to  oversight,  if  Congress  does not respond'' more 
forcefully, he said.

Republicans,  he added, may come to regret the precedents that Bush is 
asserting.

``I  tell  my  Republican  friends  that  Hillary  Clinton will be the 
president some day,'' Fein said. ``They just don't get it.''