November 05, 2007
House Judiciary Cmte. Files Miers/Bolten Contempt Report
The House Judiciary Committee has filed an 862-page report [PDF] recommending that lawmakers find former White House counsel Harriet Miers and current Chief of Staff Joshua Bolten in contempt for refusing to testify or provide documents in an investigation into the U.S. attorney firings of last year.
Speaker Nancy Pelosi is expected to bring a vote on the criminal contempt citation to the floor, though the timing of that has not been announced. If a simple majority of the House does find Miers and/or Bolten in contempt, the matter will be referred to D.C.'s U.S. attorney, Jeffrey Taylor. And herein lies yet another speed bump in congressional Democrats' quest to get to the bottom of those firings.
Congress and the Bush administration are at odds over whether Taylor is legally required to bring the contempt charge before a grand jury. It's another facet of what is essentially a classic turf war between the two branches. A statutory contempt citation, under federal law, specifies that the proceedings be turned over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."
Last summer, administration officials argued that executive privilege -- the implied constitutional shield that it says allows the White House to ignore all those congressional subpoenas -- also applies in this scenario. Put another way, the president has the right to tell the federal prosecutor to back off in any matter that affects the White House.
An aide on the Republican side of the committee told The Gate that because U.S. attorneys are appointed by the president, they are obligated to represent the president in this fight. Republicans seem confident that the contempt citation will go nowhere, but just in case they loaded the report with about 600 pages of hearing transcripts and testimony meant to rebut the committee's Democrats.
An aide for the committee's majority laughed at the apparent irony of the minority's claims. "They're saying that the White House tells the U.S. attorneys what to do, which is counter to the fundamental principles of the Justice Department," the aide said. According to the available testimony, one of the reasons the eight federal prosecutors were abruptly forced to resign last year was White House aides' determination that they were not "loyal Bushies."
"If the White House is telling them who to prosecute and who not to prosecute because they are political appointees, that's outrageous," the aide continued.
The Politico's John Bresnahan reported last week that Democratic leaders were quietly whipping members to gauge the support level for the citations. Republicans had launched a counteroffensive, lobbying Democrats in majority-GOP districts to their side, according to Bresnahan. The citations made it out of committee along party lines last July.
It's not clear where the appetite for this potentially precedent-setting fight is at the moment. The attorney firings scandal was largely confined to the Beltway, though the impression that former Attorney General Alberto Gonzales was an incompetent yes-man did eventually become widespread, contributing to his eventual resignation. Thanks to discontent with the administration, quite a few congressional Republicans are in for the fight of their lives in next year's elections. At the same time, the public has never cared much for this type of infighting, as evidenced in Congress' pitifully low approval ratings.
During his Senate confirmation hearing, Gonzales' presumed replacement, Michael Mukasey, gave an "it depends" response on the question of whether Taylor is obligated to take up the criminal citation.
"In order for a U.S. attorney to take a charge of contempt to a grand jury, a U.S. attorney has to be able to tell that grand jury that any reliance on... a privilege cited by the president or on an order of a president was unreasonable," Mukasey said, adding, "I hope and pray" to never have to make that decision.
Democrats argue that the executive privilege claim is unreasonable so long as the White House continues to insist that President Bush had no role in the firings, which would minimize the degree to which the testimony involves his internal deliberations. Another aide to Democrats on the committee said, "Mukasey hedged. That's a good thing. He left himself room to look at the situation."
Though it seems counterintuitive, House Republicans are expected to line up with the White House against the citations. According to AP, the last time DOJ refused to prosecute someone found in contempt of the House was in 1982. The department sued the House based on an executive privilege claim. Without stating that the suit was baseless, a court threw out the case. DOJ did not appeal the ruling and eventually handed over the documents.
Posted at 6:37 PM
Posted to:
Alberto Gonzales, Attorney Scandal, Bush Administration, Congress, Harriet Miers, House, Michael Mukasey, President Bush
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