Beating the Clock
In the week that was in congressional investigations, the House oversight committee demanded information on Iraq from Secretary of State Condoleeza Rice that it has been asking for since July. A Senate committee sat in exasperation as Steven Johnson, the head of the Environmental Protection Agency, wouldn’t explain why he was ignoring a Supreme Court mandate to curb global warming. And Speaker of the House Nancy Pelosi (D-Calif.) threatened a civil lawsuit against President George W. Bush for not allowing two former advisers to testify about the firing of U.S. attorney’s.
In other words, it was business as usual.
“There has been less cooperation from this administration than we’ve ever seen before,” complained Anne Weismann, chief counsel at the Citizens for Responsibility and Ethics in Washington, which is suing the White House over missing e-mails. “They’ve relentlessly stalled and it’s a tactic that’s worked.”
But are the complaints by Weismann and other White House watchdogs historically accurate? Is the Bush administration’s stalling in producing the documents and granting the interviews Congress calls for really so unprecedented?
The Washington Independent posed this question to a range of presidential and congressional historians, as well former government officials and representatives. A consensus emerged that while administrations almost by nature dither in complying with investigations, the Bush administration has been more deliberate and relentless in its stalling. (A sidebar with more information on these various stalled scandals is here.) This White House’s assertion of executive power, beyond any reach of Congress, has been remarkable since its earliest days– beginning with its refusal to release the names of people consulted on energy policy. These names have still not been revealed.
“The breath of resistance, which moves beyond any one scandal is quite dramatic,” said Julian Zelizer, a historian at Princeton, whose specialty is [the U.S. ]Congress. “Bush has taken a tradition in modern politics and expanded it beyond his predecessors.”
Moreover, the experts generally assert that stalling has indeed worked, and will continue to work.
“They will be able to play out the clock,” said Robert McElvaine, a historian at Millsaps College, who has written biographies of Franklin D. Roosevelt and Ronald Reagan. “People want to move on and will be focused on the election.”
When asked which administration the stalling was most reminiscent of, most experts [immediately] said the Nixon administration. Many authorities, however, were quick to stress that, in his contempt for Congress, Nixon was more extreme.
“None of this is at the epic level of Congress not knowing Nixon was making secrets agreements with the South Vietnamese government,” said Steven Schier, a professor of political science at Carleton College, who has written books on Bill Clinton and the current president.
But Robert Dallek, the presidential historian who has written books about John F. Kennedy, Lyndon B. Johnson and Richard M. Nixon, sees a bigger problem here. “What is somewhat different with Bush is that there is a more scandalous record that we’ve seen in a while, so that makes them more vulnerable,” said Robert Dallek, the author, most recently, of “Nixon and Kissinger: Partners in Power.” Dallek said that with the Nixon administration, the crime was often the cover-up; with the Bush Administration, “the crime is what they did.”
Charles Tiefer, deputy counsel of the Democratic House of Representatives between 1984 and 1995, who advised on investigations into Iran-Contra under Presidents Ronald Reagan and George H.W. Bush’s, as well as the early days of the Whitewater investigation into President Bill Clinton, argues, as do others, that there was a post-Nixon backlash.
Tiefer, now a law professor at the University of Baltimore, says that Reagan and Clinton, the most recent two-term presidents, were more cooperative. “There was an element of honor that executive privilege would not be evoked if there was criminal behavior,” said Tiefer. “If you’re accused of tampering with the administration of justice, executive privilege should not be claimed.”
Because of this, Tiefer added, a Democratic Congress was largely able to complete its investigation into the Iran-Contra dealings of the Republican Reagan administration. And a GOP Congress even got Democratic President Bill Clinton to testify under oath about an extramarital affair.
“The Reagan administration attempted to circumvent the Congress in the Iran-Contra affair but, when it was uncovered, provided most — if not all — the information Congress sought,” said Scott Lilly, who was a Democratic congressman from 1973 to 2004. Lilly, now a senior fellow at the liberal think tank Center for American Progress, emphasized the sheer amount of stalling in the current administration.
“No White House in the last 50 years has succeeded in concealing one-tenth of what this White House has thus far concealed,” Lilly asserted.
If Lilly’s charge is even close to accurate, it raises the question of whether the White House can get away with it. The experts consulted by The Washington Independent generally say yes — in part because the public wants to move on.
“It’s a combination of public pressure and the increasingly threadbare reasons for withholding that forces disclosure,” said Teifer. “But the pressure isn’t there. If Congress did too much they’d be accused of a witch hunt.”
Dallek argues that the only way Congress can force Bush’s hand is to get the courts to intervene on matters like the administration’s refusing to let Chief of Staff Joshua Bolten and Harriet Miers, the former White House counsel, testify about the firing of federal prosecutors. Numerous civil suits would also leave open the possibility that when the administration ends, the investigations won’t.
Stephen Gillers, a professor of legal ethics at New York University School of Law, agrees with Dallek. “They need to go to court and ask a judge to hold the White House in contempt,” Gillers said. “Then you’re not dependent on the attorney general.”
Gillers is confident that Congress could win these claims, arguing that only the president and vice-president are protected from subpoenaed testimony under executive privilege. But even if a suit goes through the court, White House figures like Miers and Bolten could still claim executive privilege on specific questions asked by Congress. That would necessitate yet another lawsuit on which questions they must answer. Or Miers and Bolten could show the ultimate sign of loyalty to a president — and go to jail rather than talk. “The end game could actually be years away,” Gillers said.
So in order to protect its power of executive oversight, Congress might well have to file myriad little lawsuits. A logistical nightmare, perhaps, but maybe preferable to the status quo.
“How much can Congress complain,” Dallek asked, “when they just don’t know if there is something to complain about?”