Resurrecting the imperial presidency?

By Alan W. Bock

Why am I not surprised that President Dubya would invoke the tired and usually evasive concept of executive privilege for the first time in order to frustrate a Republican congressman seeking information related to alleged Democratic fundraising abuses? The powers of the presidency are seductive. It is hardly uncommon for a resident of the Oval Orifice who might have declared fealty to some iteration of limited government during a campaign to become more concerned with preserving the power of the institution of the presidency than with the liberty of the people.

Besides, while he made a few rhetorical gestures in that direction, anybody who thought George W. Bush was running as a limited-government conservative, even during the campaign, was seriously deluded. Dubya’s major attraction to conservatives was that he wasn’t Al Gore.

Well, he isn’t Al Gore, and he did manage to maneuver a modest tax cut – most of which is still in the future and therefore in peril, especially if the budget surplus continues to fade – through Congress. That is probably the best a limited-government advocate could expect from this Texanized scion of an eastern Republican dynasty. And it is all we are likely to get.

The expected invocation of executive privilege comes in a battle being waged by Indiana Republican Dan Burton, for long a thorn in Billy Jeff’s side as head of the House Government Reform Committee. Burton wants access to prosecutors’ deliberative memos in which the pros and cons are discussed about three Clinton-era criminal cases: Democratic fund-raising, a former Clinton White House official, and a former drug-enforcement agent. Burton also wants some memos involving the FBI’s handling of mob informants in Boston over a period of three decades.

When he was in the Senate, now-Attorney General John Ashcroft had urged then-Attorney General Janet Reno to release some of the same documents relating to probes into fundraising. Now that he is Attorney General, however, he doesn’t want those ruffians in Congress to have them. In fact, the Justice Department is thinking about adopting a blanket policy of not releasing any prosecutorial deliberative documents to Congress, even though such documents have been shared with Congress in the past without jeopardizing ongoing cases or doing anything resembling damage to the sacred powers of the holy presidency.

Dan Burton said this attitude toward releasing Justice Department documents to Congress makes it virtually impossible to exercise the oversight Congress is supposed to perform over the executive branch, and he has a point. In fact, insofar as Congress is the body at least theoretically closest to the people, and the body with primary power under our original constitutional scheme, it should be so rare as to be extraordinary for any member of the executive branch to withhold information requested by Congress.

It isn’t, of course. As the presidency has grown into the imperial presidency, the White House and the entire executive branch have grown more arrogant and more jealous of the privacy they think should be their due as they conduct the “peoples’ business.”

So John Ashcroft, who was going to be so different, continues, defends aggressively and extends Janet Reno’s close-fisted ways with information at Justice. It is impossible to say for sure whether the Attorney General who came in promising to change the way the department operated has already been “captured” by the permanent bureaucracy. But, at the least, he is demonstrating more interest in the parochial interests of his own department than in the larger interest of congressional oversight of the executive branch – let alone the interest of the American people in knowing how the government conducts “their” business.

And President Bush – perhaps ostensibly in pursuit of his goal of civility to be achieved by not being nasty to any Democrats – backs him up and uses the mighty power of executive privilege to continue what might be cover-ups by withholding information from the representatives of the people.

Well, well. Should we be surprised? President Bush has continued President Clinton’s inept and unfocused foreign policy in the Balkans despite what sounded like campaign promises to begin the process of pulling U.S. troops out of that morass. It seems that the interests of the permanent bureaucracies trump what the American people thought they were voting for.

President Bush has had the Justice Department – headed, remember, by the staunchly conservative critic of affirmative action John Ashcroft – enter the fray over the Adarand case, in which the Supreme Court a few years ago asked the feds to retool their program of racial preferences for highway contractors. The president had said during the campaign that he was opposed to “quotas,” but looked kindly on “affirmative access,” whatever those weasel words mean. In practice, they mean defending “liberal” racial-quota programs even after the Supreme Court has declared them unconstitutional.

Despite yesterday’s decision not to seek the breakup of Microsoft – a goal nobody expected it to achieve anyway – the Justice Department is still aggressively pursuing the meritless and harmful case against the software company. Why – especially in a softening economy that has in part been damaged by this very case and its fallout? Is it strictly loyalty to the institution, even to the policies adopted when the other party ran the place? Is it cowardliness in the face of a possible news cycle of criticism if Justice simply dropped the case? Is it utter and complete economic ignorance?

Hard to say.

In response to special-interest pressure the administration decided to impose a 19.3 percent tariff on softwood lumber imported from Canada – and to make the tariff retroactive to mid-May. Weren’t Republicans opposed to retroactive taxes – or was that only to retroactive taxes proposed by Democrats? For that matter, weren’t Republicans supposed to be free traders?

This overweening concern for “continuity” and for defending the institutional interests of offices and departments they were supposed to reform is all too typical of our Republicrat oligarchs. One might hope for institutional reform some legislation that would reduce the power of the presidency or departments of the executive branch that have gotten too big for their britches.

But “comity” and “civility” – not to mention the fact that all the scoundrels in Washington feel more akin to one another than to the ordinary people whose interests they are supposed to be representing – probably make that hope unrealistic.

Perhaps the best we can hope for is that the occasional obstreperous member of Congress like Mr. Burton will slap the executive branch around, however ineffectually and temporarily, from time to time.