Bush invokes executive privilege to keep Justice Department documents secret

Thursday, December 13th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ President Bush invoked executive privilege for the first time Thursday to keep Congress from seeing documents of prosecutors' decision-making in cases ranging from a decades-old Boston murder to the Clinton-era fund-raising probe.

``I believe congressional access to these documents would be contrary to the national interest,'' Bush wrote in a memo ordering Attorney General John Ashcroft to withhold the documents from a House investigative committee that subpoenaed them.

The decision institutes a dramatic change in the way the administration intends to deal with Congress after years in which the Justice Department, sometimes reluctantly, shared sensitive investigative documents with lawmakers.

Republicans and Democrats alike excoriated the decision, suggesting Bush was creating a ``monarchy'' or ``imperial'' presidency to keep Congress for overseeing the executive branch and guarding against corruption.

The Republican House committee chairman who sought the documents raised the possibility of taking Bush to court for contempt of Congress.

``Everyone is in agreement you guys are making a big mistake,'' Rep. Dan Burton, R-Ind., told Justice lawyers at a hearing after the announcement. ``We might be able to go to the (House) floor and take this thing to court.''

The full House, controlled by Republicans, would have to vote to find Bush in contempt to start such a court battle.

In his memo to Ashcroft, the president explained his decision.

``Disclosure to Congress of confidential advice to the attorney general regarding the appointment of a special counsel and confidential recommendations to Department of Justice officials regarding whether to bring criminal charges would inhibit the candor necessary to the effectiveness of the deliberative process by which the department makes prosecutorial decisions,'' Bush wrote.

He added, ``It is my decision that you should not release these documents or otherwise make them available to the committee. ... I have decided to assert executive privilege.''

Burton decried the decision. ``This is not a monarchy,'' he said. ``The legislative branch has oversight responsibility to make sure there is no corruption in the executive branch.''

Rep. Henry Waxman, the top Democrat on the committee, who frequently sparred with Burton during Clinton era investigations, agreed with his sometimes nemesis.

``An imperial presidency or an imperial justice department conflicts with the democratic principles of our nation,'' Waxman said.

The decision immediately affects a subpoena from Burton's House Government Reform Committee for documents related to the FBI's handling of mob informants in Boston dating to the 1960s.

More importantly, it sets a new policy in the works for months in which the administration will resist lawmakers' requests to view prosecutorial decision-making documents that have been routinely turned over to Congress in years past.

Executive privilege is a doctrine recognized by the courts that ensures presidents can get candid advice in private without fear of its becoming public.

The privilege, however, is best known for the unsuccessful attempts by former Presidents Nixon and Clinton to keep evidence secret during impeachment investigations.

White House counsel Alberto Gonzales recommended Bush invoke the privilege earlier this fall.

While invoking the privilege, Bush instructed Ashcroft to have the Justice Department ``remain willing to work informally with the committee to provide such information as it can, consistent with these instructions and without violating the constitutional doctrine of separation of powers.''

Burton's committee for months has been seeking Justice Department memos about prosecutors' decisions in cases involving the handling of mob informants in Boston, Democratic fund raising, a former Clinton White House official and a former federal drug enforcement agent.

The committee subpoenaed Ashcroft, demanding those documents in the fall and scheduled a hearing Thursday to examine the Boston case.

That case stems from revelations that Joseph Salvati of Boston spent 30 years in prison for a murder he did not commit even though the FBI had evidence of his innocence. Salvati was freed in January after a judge concluded that FBI agents hid testimony that would have cleared Salvati because they wanted to protect an informant.

Several such memos were shared with Congress during both Republican and Democratic administrations. Most recently, in the 1990s, such documents were turned over to the Whitewater, fund-raising, pardons and impeachment investigations by lawmakers.

But the concept of extending executive privilege to Justice Department decisions isn't new. During the Reagan years, the privilege was cited as the reason the department did not tell Congress about some memos in a high-profile environmental case.

And Clinton's attorney general, Janet Reno, advised Clinton in 1999 that he could invoke the privilege to keep from disclosing documents detailing department views on 16 pardon cases.