Dan Burton, Wrong Again
EDITORIAL Dan Burton, Wrong Again Next Wednesday, January 23, Rep. Dan Burton's House Committee on Government Reform will hold a hearing on the "history of congressional access to deliberative...
...For more than 20 years beginning in the 1960s, it seems, the Bureau's Boston office, in order to preserve access to a group of prized Mafia informants, actively concealed evidence of its favored mobsters' serious crimes, including murder, and kept mum while at least one clearly innocent man went to prison in their stead...
...President Bush should not make the same mistake...
...The New York Times, for example, claims alarm over the "expansion of executive authority" implicit in a "blanket presidential order denying access to records that were routinely made available in the past...
...George W. Bush was correct to assert executive privilege against Dan Burton's subpoena...
...Or worse...
...The president has a responsibility, flowing from the Constitution's due process clause, to ensure that the federal government's administration of criminal justice is never compromised by exposure to the pressure of popularly elected legislators...
...No consideration of constitutional law or basic prudence suggests that a House committee chairman may appropriately review and publicize otherwise secret federal grand jury evidence even as it is being presented and considered...
...No, as a matter of fact, they're not...
...As a matter of constitutional and common law, Clinton's infamously promiscuous and almost invariably unsuccessful litigation of frivolous executive privilege claims left the confidentiality of White House and cabinet department decision-making vulnerable as never before to invasion by officers of the federal courts...
...Various presidents dating back to Thomas Jefferson have reluctantly complied with subpoenas issued by federal courts in connection with ongoing criminal trials...
...Barney Frank, who for some reason fancies himself qualified to judge such stuff, marvels at Burton's "genuine intellectual integrity...
...The New York Times's potted account of history notwithstanding, Burton has it exactly backwards: The truth is that no American president has ever failed to dispute such a subpoena as his...
...Are the documents Burton now insists he be provided of such a nature as to distinguish his latest "appropriate" subpoena from all those previous "abusive" ones...
...Nor is it the sort of thing one would expect the New York Times and Henry Waxman to admire—or Burton's Hill Republican colleagues to acquiesce in...
...Various presidents dating back to George Washington have reluctantly provided Congress with confidential executive branch documents concerning ongoing civil investigations...
...Senate Republicans haven't made a peep in the president's defense...
...Dan Burton is rather vague about what role the House Government Reform Committee might play in rectifying this miscarriage of justice...
...And Burton's fellow Republicans in the House eventually grew so embarrassed over his excesses that they forced him, at a notable closed-door caucus meeting in May 1998, to apologize...
...Go figure...
...But he is certain he will find it once John Ashcroft forks over a series of years-old "declination memos"—formal legal analyses explaining why federal prosecutors long ago decided not to indict certain people allegedly belonging to the New England mob...
...The House Republican leaders have given Burton leave to pursue precisely this argument by formal means—against their own party's White House...
...Burton, he says, is "clearly entitled to receive" the material in question, and the Bush administration's refusal to turn it over "conflicts with the fundamental democratic principles of our nation...
...Dan Burton's House Committee on Government Reform will hold a hearing on the "history of congressional access to deliberative Justice Department documents," Burton having served a subpoena for certain such documents on Attorney General Ashcroft in early September, and President Bush having subsequently directed Ashcroft to ignore the demand on grounds of "executive privilege...
...Henry Wax-man, ranking minority member of the Government Reform committee, says, "I agree with Chairman Burton...
...And go figure, too, Dan Burton's contention that Congress's unlimited prerogative to review decision-making memoranda prepared by executive branch prosecutors "cannot be seriously disputed...
...But faced with a congressional oversight committee's subpoena for "live" and otherwise non-public criminal case records—or for memoranda justifying even ancient decisions about whether or not to indict a criminal suspect— no chief executive has ever surrendered...
...News of which apology, so as to reinforce the humiliation, allies of then-Speaker Newt Gingrich promptly leaked to the Washington Post...
...After all: During his first six years at the helm of Government Reform, when Burton was tirelessly tilting against various Clinton administration scandals, real and imagined, the Times regularly and repeatedly derided his subpoenas as the work of a malevolent kook...
...all the case files in question are "closed...
...Instead, he all too often capitulated...
...No chief executive, that is, except Bill Clinton, who in this respect, as in so many others, badly betrayed the presidency as an institution...
...It is true that Burton is consistent...
...How is it, then, that all of a sudden Dan Burton gets to be the good guy...
...But that's the whole point, of course: Why those files were closed—whether decisions not to prosecute FBI mob informants in Boston were illegal and corrupt—is the very question now directly before the grand jury...
...And he should stick to his guns no matter what—not to effect an "expansion" of presidential authority, but merely to restore a healthier pre-Burton, pre-Clinton status quo...
...Burton is consistent in his view that invocations of executive privilege that frustrate his curiosity are ipso facto improper and invalid...
...And while it is not clear that any of the relevant judicial rulings rendered congressional subpoenas like Dan Burton's legally enforceable, here too, in practice, Clinton managed to mortgage a necessary authority of his office...
...These inquiries President Clinton should properly have doggedly resisted on grounds of executive privilege...
...And he is consistent in his willingness to employ the full powers of his committee's "oversight" authority in order to affect, to his liking, realtime government decision-making traditionally reserved to the president and his appointees...
...He is consistent in his view that any confidential executive branch information he is curious to peek at is confidential executive branch information that Congress has a right to obtain and make public...
...And congressional Democrats proclaim themselves goose-pimply with respect for, even awed by, Burton's courage and consistency here...
...This is not exactly what James Madison had in mind when he explained the separation of powers necessary to constitutional government in Federalist 51...
...Henry Waxman is okay with all this...
...And Burton's is the construction of events that most people outside the Bush administration now seem eager to accept...
...Has something changed—other than the fact that the president today asserting executive privilege isn't a Democrat...
...And various presidents have released confidential but purely factual information, purged of prosecutorial deliberation, from the case files of criminal investigations that have already been closed...
...Burton has cast himself the hero in this controversy —a government-in-the-sunshine crusader against recalcitrant executive branch officers eager to conceal official malfeasance and corruption...
...The bulk of Burton's latest subpoena seeks evidence now before a federal grand jury investigating a grotesque scandal involving the FBI...
...Since assuming the Government Reform committee chairmanship in 1995, Dan Burton has fired somewhere in the neighborhood of seven hundred subpoenas down Pennsylvania Avenue, a great many of them, as in the present case, seeking disclosure of deliberative memoranda prepared by Justice Department prosecutors in connection with criminal investigations still underway...
...For reasons Waxman does not explain, the Clinton administration's refusal to turn over the very same records concerning Gore—which Burton originally subpoenaed in August 2000, over vehement Democratic objections—did not conflict with the fundamental democratic principles of our nation...
...David Tell, for the Editors...
...You are hereby commanded," the Government Reform Committee's September 6 subpoena informs Attorney General Ashcroft, to deliver unto Dan Burton, in unredacted form, every extant document relevant to internal Justice Department deliberations, past or present, over whether to prosecute 14 specifically named individuals—and whether to refer a fifteenth, unnamed individual, who happens to be former Vice President Gore, to an outside special counsel...
...And any man who cannot see why it might not be a good idea for this particular House committee chairman to get his mitts on such stuff is a fool...
...Burton regularly sought access to prosecutorial decision memoranda prepared by Janet Reno's Justice Department...
...And Henry Waxman fought him every step of the way...
...Disclosure of these documents cannot be harmful, Burton argues...
...Specifically, the president has a responsibility to ensure that Justice Department prosecutors are allowed to make up their minds whether to indict someone without worrying that Dan Burton's Government Reform Committee will shortly put them on the griddle for it...
Vol. 7 • January 2002 • No. 18
