The Bush administration is again seeking to expand the sphere of presidential power. Not only has the president made several new dubious assertions of executive privilege, but the president now also claims that those assertions are unreviewable by a judge because charging agents of the executive branch with contempt of congress, which would be required in order to have a judge review assertions of executive privilege, requires the executive branch to enforce the law. The administration claims it will not enforce the law, relying on a 1984 Justice Department opinion that:
The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.
The Bush administration’s position that one part of executive branch cannot prosecute another part is dangerous to the rule of law. The position traces back to unitary executive theory, which claims that the president holds all executive power. A unitary executive with powers of executive privilege essentially renders the president beyond oversight by congress because the president can always invoke executive privilege and refuse to prosecute himself for contempt to avoid judicial review for executive privilege assertions. This seriously threatens the rule of law because without strong oversight, the executive branch has enormous power to apply the law arbitrarily.
As a side note: the unitary executive theory is plainly not technically correct. At the very least, congress always holds the power to impeach the president, which is an executive power because congress can initiate enforcement.