Bush invokes executive privilege concerning Justice documents

Thursday, December 13, 2001

Associated Press WriterWASHINGTON (AP) -- President Bush has invoked executive privilege for the first time to keep Congress from seeing documents of prosecutors' decision-making in cases ranging from decades-old Boston murders to the Clinton-era fund-raising probe, The Associated Press has learned.

The administration informed a House committee of the decision prior to a congressional hearing Thursday, officials said, speaking only on condition of anonymity.

In a memo to Attorney General John Ashcroft, the president explained his decision.

"It is my decision that you should not release these documents or otherwise make them available to the committee," Bush wrote in the memo obtained by AP. "I have decided to assert executive privilege with respect to the documents."

Bush wrote that the "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."

The decision immediately affects a subpoena from the House Government Reform Committee for documents related to 1960s murders in Boston. 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.

Aware the White House was considering such a new policy, members of Congress have raised concerns that it will hinder lawmakers from giving proper oversight to federal prosecutions, noting scandals in the past would never have been exposed if Congress had been kept from sensitive documents.

"If this unprecedented policy is permitted to stand, Congress will not be able to exercise meaningful oversight of the executive branch," Rep. Dan Burton, R-Ind., said recently.

Burton is chairman of the House panel that has been trying to obtain documents from various federal cases in which lawmakers want to examine the conduct and decisions of prosecutors and FBI agents.

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