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friends Robert Novak and the editorial writers at the Washington
Times are very upset that the Bush administration is refusing
to release to Congress criminal-investigative information dating
back to Janet Reno's tenure and meeting notes or documents generated
by Vice President Dick Cheney's energy task force. They even suggest
parallels with the stonewalling done by the Clinton administration.
There seems
to be some confusion about what's going on here. Every president
has a duty to protect the constitutional authority of the executive
branch from encroachment by Congress and the judiciary. The Constitution
does not give Congress the general right to oversee every function
of the executive branch. There must be a legitimate legislative
purpose to support demands for, among other things, executive-branch
documents.
Dan Burton
insists on receiving internal investigative information relating
to criminal probes and prosecutorial decisions by the Department
of Justice. What is Congress going to do with this information?
It has no role in the conduct of criminal investigations or prosecutions.
That's an executive-branch function. And if individual subjects
of the investigations (or defendants) wish to challenge the executive
branch's conduct, that's a judicial branch function. In any event,
how would the receipt of this information advance any legislative
purpose? Mr. Burton and the rest of us already know that the Reno
Justice Department stonewalled a myriad of investigations to protect
Mr. Clinton. To my knowledge, no legislation has been introduced
to address these transgressions.
Congressional
demands for such information as grand-jury testimony and raw investigative
data are usually based on self-serving assertions about the "public's
right to know." But this must be balanced against the constitutionally
protected due-process rights of investigative targets and defendants.
You cannot achieve justice by politicizing it — i.e., by allowing
politicians to insert themselves into the day-to-day decisions of
a criminal investigation.
Let me suggest
further that the public does not have a right to know everything
about a criminal investigation. It does not have a right to know
what takes place in a grand jury; it does not have a right to know
the identity of informants; and it does not have the right to know
every piece of information uncovered in an investigation. Even in
a judicial proceeding there are rules of evidence that bar the introduction
of certain kinds of information.
Attorney General
John Ashcroft is refusing to release the information Mr. Burton
demands not because it would incriminate him or the current administration,
but because to do so would do great damage to the criminal-justice
system and the doctrine of separation of powers. This is also why
the White House is refusing to release meeting notes and other documents
created during the course of Vice President Cheney's energy task-force
meetings.
The executive
branch cannot function effectively if, for instance, the president
and vice president are unable to solicit and receive candid advice
from other officials and private citizens about public-policy matters.
Republican and Democrat presidents alike have resisted efforts by
Congress to encroach on their ability to collect the necessary information
to do their jobs. Under the Constitution, Congress has no more of
a right to this information than a president has to demand it from
members of Congress. (I'm addressing the legal parameters, not the
political dynamics that arise from these disputes.)
The Bush administration's
principled resistance to disclosing energy task-force information
bears no resemblance to the Clinton administration's efforts to
obstruct Ken Starr's investigation of Mr. Clinton's offenses. Mr.
Clinton asserted various privileges, including executive privilege,
not to protect his administration's deliberations on public policy
matters, but to deny a federal prosecutor and grand-jury information
about the president's personal conduct.
Moreover, Mr.
Cheney's energy task force bears no resemblance to Hillary Clinton's
health-care task force. Whereas Mr. Cheney's task force consisted
of only government officials, who from time to time received input
from the private sector, Mrs. Clinton appointed approximately 1,000
individuals — including people from the private sector —
as actual members of her group. Therefore, as a federal court ruled,
Mrs. Clinton's task force was required to conduct its work in public.
While I understand that these legal distinctions are considered
hypertechnical by some, they're critical to understanding the motives
of the current White House, which have been wrongly characterized
as arrogant and unreasonable. In fact, they are meritorious and
sound.
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