White House will likely dodge congressional contempt charges, expert suggests

July 13, 2007 -- While members of the U.S. House and Senate are threatening to hold White House officials in contempt of Congress over the administration's use of executive privilege to hinder testimony in an ongoing investigation of the controversial firings of U.S. attorneys, the dispute is likely to fizzle without much of a showdown, suggests a congressional expert from Washington University in St. Louis.

Steven Smith

"Bringing Fred Fielding into the White House seemed to signal a willingness to compromise with Congress on the issue of providing testimony and documents," says Steven S. Smith, the Kate M. Gregg Professor of Social Sciences in Arts & Sciences. "Fielding, after all, had negotiated compromises in Reagan administration to avoid more serious clashes in the courts over congressional subpoena power and executive privilege. The Bush response to the most recent subpoenas means that the signal was misread by many observers."

Smith, the author of six books on congressional politics, says a congressional battle with Bush would take place under much different circumstances than those surrounding Reagan's tug-of-war.

"President Bush has asserted broader presidential power than any other president," Smith notes. "This may be due to the strong influence of Vice President Cheney, who has long taken a strong view of the unitary executive. In this view, made explicit in memos written by former Bush administration official John Yoo and Cheney aide David Addington, the Constitution creates a unified executive branch under direct presidential control. A natural corollary of this view is that any communications internal to the executive branch, such as email from White House sources or discussions among Department of Justice officials, is covered by executive privilege, a doctrine initially articulated to protect the advice given to the president."

Nevertheless, Smith views Fielding as a pragmatist, and that's one of several reasons, he suggests, why this battle may never come to a head.

"We may see the White House back down from this extraordinarily strong position and agree to some new arrangement to avoid a court order that forces more concessions," suggests Smith.

"The problem for Democrats in Congress is that time is short and prosecuting a contempt citation falls to Bush-appointed U.S. attorneys. Delays in prosecution, a decision not to prosecute, or even a weakly argued case for contempt may undermine Congress's ability to get a meaningful ruling before the end of the Bush administration. If the administration runs out before the issue is resolved, the next Congress is unlikely to pursue the matter further."