In the Reagan administration, the Justice Department maintained that a U.S. attorney is not required to refer a contempt citation to a grand jury “or otherwise to prosecute an executive branch official who is carrying out the president’s direction to assert executive privilege,” the report said.
The memo was written by Reagan administration officials after a struggle over Congress’ vote to cite Environmental Protection Agency Administrator Anne Gorsuch Burford in contempt for withholding documents related to the Superfund program.
Justice filed suit, saying the House action was an “unwarranted burden on executive privilege” and interfered with the executive branch’s ability to carry out the law. A federal district court dismissed the suit, saying it should not get involved in a legislative-executive branch dispute until all avenues for a possible settlement have been resolved.
Justice did not appeal the decision, resumed talks and eventually the documents were released to Congress.
In the George W. Bush administration, the House voted contempt citations against White House Counsel Harriet Miers and Chief of Staff Josh Bolten in connection with the firing of U.S. attorneys.
But the Justice Department quickly said it would not bring contempt citations before a grand jury, so Congress went to court and got a ruling that the immunity claim is “entirely unsupported by existing case law.” The court also warned immunity could be invoked, saying Miers could claim executive privilege in certain circumstances.
Two months after Bush left office, the two sides reached a settlement and some documents were released.