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Showdown In Washington

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The Bush administration is arguing that the presidency would be harmed by the release of documents Congress' investigators are seeking — yet is not using the politically charged term "executive privilege."

That might evoke memories of bitter battles of the Nixon and Clinton administrations, and that "never worked," said Lanny Davis, who was Clinton White House counsel during the foreign campaign money and Monica Lewinsky controversies. "We could not resist the political pressures for disclosure."

Congressional investigators plan to sue the Executive Branch for the release of documents relating to Enron and Enron officials' meetings with top administration officials, including Vice President Dick Cheney.

But the GAO, Congress' investigative arm, is first giving President Bush a chance to review his decision not to surrender the information.

The unprecedented lawsuit comes as a new memo surfaced from Enron's Ken Lay to Vice President Dick Cheney LAST spring urging the administration not to control energy prices in California, where Enron was making huge profits, reports CBS News Capitol Hill Correspondent Bob Fuss.

"I just can't quite understand why the administration is stonewalling on giving the General Accounting Office this information," said California Democrat Henry Waxman.

Full Coverage

  • Legal Analysis:
    Bush's GAO playbook
  • The Enron Effect:
    Campaign finance reform
  • Double Disaster:
    Couples hit hard
  • The Bush Agenda:
    Overshadowed by Enron
  • CBS Poll:
    Who's to blame?
  • The Employees:
    Joining the legal fray
  • The Whistleblower:
    Her memo sounded the alarm
  • Taxing Times:
    Did Enron pay fair share?
  • Commentary:
    Too serious for scandal
  • Online Auction:
    Ex-workers selling souvenirs
  • Big Money:
    Lavishing the lawmakers
  • "It just seems like the Bush administration is drawing the line because they want to operate in secrecy, not only as it relates to the Energy Task Force, but if they can get away with it here probably in a lot of other areas as well."

    The General Accounting Office, the congressional watchdog agency, wants to know with whom Cheney met with in drawing up the administration's energy plan.

    Mr. Bush has refused to hand over documents from Vice President Dick Cheney's group that formulated a national energy policy, saying to do so would encroach on his ability to seek outside views.

    The dispute has gained political traction because Enron, a Houston-based energy conglomerate that entered the biggest U.S. bankruptcy ever on Dec. 2, had ties to Mr. Bush and was one of his biggest corporate campaign donors.

    "This is part of how you make decisions," the president declared Monday. "We're not going to let the ability for us to discuss matters between ourselves to become eroded. It's not only important for this administration, it's an important principle for future administrations."

    A day earlier on television shows, Cheney also said it was vital to protect the right of the president and vice president to keep policy discussions private so they can receive "unvarnished advice."

    Yet when a reporter asked Wednesday whether the White House was asserting executive privilege as the legal basis to deny the GAO the documents, presidential spokesman Ari Fleischer said it was not.

    "No, the administration's position, which we expect to be upheld in a court of law, is that the General Accounting Office is acting beyond their authority," Fleischer said. "So there's no need to exert the privilege; the GAO is acting outside its authority."

    Not so, says Comptroller General David Walker, who heads the GAO. In a letter to Waxman, the ranking Democrat on the House Government Reform Committee, Walker said oversight of energy policy and the investigation of Enron-related matters were "important institutional prerogatives" of Congress.

    The lawsuit, naming Cheney and possibly others, will be filed in two or three weeks unless a last-minute agreement is worked out, Walker told The Associated Press.

    Executive privilege is an extreme legal weapon and the White House may want to try in court first with the argument on the GAO's authority, suggested Mariano-Florentino Cuellar, an assistant professor at Stanford University Law School.

    Privilege "will probably be invoked later on if they lose," he said.

    Like the Fifth Amendment right against self-incrimination, Cuellar said, the use of executive privilege is "almost a recipe for more congressional investigation" because it creates the impression that people are trying to hide something.

    Davis, the former counsel to President Clinton, has bitter experience of that. "You're making a politically untenable argument," he said.

    However, Davis stresses that he believes Mr. Bush has the right to defend his executive prerogative. "The Bush White House is defending an important legal principle," he says, adding that the problem has to do with political perceptions.

    Mr. Clinton invoked or theatened to assert executive privilege during the Lewinsky investigation, impeachment and other matters. During the perjury and obstruction of justice investigation that led to his impeachment, Clinton considered and dropped a variety of privilege claims. They were thought unlikely to stand up in court.

    In 1974, Richard Nixon tried to use executive privilege in an attempt to avoid turning over his secret White House tapes to the Watergate special prosecutor. The Supreme Court ruled Nixon could not withhold evidence needed in a criminal prosecution — a setback that contributed to his downfall.

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