Contempt or cooperation

The American public has a stake beyond the headlines in a federal judge's call for ''compromise and cooperation, rather than confrontation'' in the Anne Gorsuch contempt-of-Congress case. This stake lies in protection from toxic waste dumpers who congressional investigators suspect may be escaping proper enforcement of the $1.6 billion ''superfund'' clean-up law.

Congress cited EPA administrator Gorsuch for contempt on grounds that she unlawfully withheld subpoenaed documents needed to determine the facts. The Justice Department took the extraordinary step of trying to quash the case with a civil suit. It was in dismissing this suit last week that the judge called for cooperation.

The Justice Department was well advised to respond with promises of a cooperative approach. There is no reason not to reach an outcome similar to the one when Interior Secretary Watt refused to supply subpoenaed papers. After a contempt citation by a congressional committee, the administration allowed the papers to be seen under limitations accepted by Congress, and the contempt charges were not pursued.

The House public works subcommittee on investigations and oversight long ago indicated something like this would be acceptable in the Gorsuch case. It agreed not to take custody of the papers but simply to be allowed viewing and note-taking under carefully prescribed limits. It did understandably draw the line at administration pre-screening of the documents.

The information is needed to confirm or deny evidence that has caused congressional skepticism about EPA enforcement. Are some companies receiving favorable treatment? Are there problems with the enforcers, or is the law itself deficient? Is the public being protected as the Congress intended?

All parts of government have an interest in cooperating toward such a result. Negotiated limits on disclosure ought to meet the admininstration's claim that a breach of confidentiality could damage ongoing investigations.

Negotiations also could forestall a judicial battle over executive privilege, something the judge last week wisely deferred. This privilege has been hard enough to assert even under the legal interpretation of it as covering communications only from the president. The administration has a weak argument in trying to extend executive privilege to the communications among relatively low-level bureaucrats that Congress subpoenaed in the present instance.

Justice Department lawyers have a couple of months in which to appeal last week's judicial defeat if they choose. A better choice for a legal agency would be to join with Congress in making sure all necessary information is available to address the questions about the enforcement of hazardous waste law.

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