WASHINGTON - 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
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.
A reporter walks out of the Capitol Hill office of Rep.
William Jefferson, D-La., in this June 4, 2007 file photo.
"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
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
"I tell my Republican friends that Hillary Clinton will be the president some
day," Fein said. "They just don't get it."