The Magazine

Dan Burton, Wrong Again

Jan 21, 2002, Vol. 7, No. 18 • By DAVID TELL, FOR THE EDITORS
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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 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." Rep. 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. And Burton's is the construction of events that most people outside the Bush administration now seem eager to accept.

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." The House Republican leaders have given Burton leave to pursue precisely this argument by formal means--against their own party's White House. Senate Republicans haven't made a peep in the president's defense. And congressional Democrats proclaim themselves goose-pimply with respect for, even awed by, Burton's courage and consistency here. Henry Waxman, ranking minority member of the Government Reform committee, says, "I agree with Chairman Burton." Rep. Barney Frank, who for some reason fancies himself qualified to judge such stuff, marvels at Burton's "genuine intellectual integrity."

It is true that Burton is consistent. 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. Burton is consistent in his view that invocations of executive privilege that frustrate his curiosity are ipso facto improper and invalid. 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, real-time government decision-making traditionally reserved to the president and his appointees. 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.

This is not exactly what James Madison had in mind when he explained the separation of powers necessary to constitutional government in Federalist 51. 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. 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. And Henry Waxman fought him every step of the way. 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. News of which apology, so as to reinforce the humiliation, allies of then-Speaker Newt Gingrich promptly leaked to the Washington Post.

How is it, then, that all of a sudden Dan Burton gets to be the good guy? Has something changed--other than the fact that the president today asserting executive privilege isn't a Democrat? 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?

NO, as a matter of fact, they're not. "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. Henry Waxman is okay with all this. 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." 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. Go figure.