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House Democrats said a civil lawsuit could be filed as early as this month that challenges the Bush administration’s claims of executive privilege in curtailing aides from testifying on Capitol Hill.
Speaker Nancy Pelosi (D-Calif.) announced Friday that the House would pursue the civil litigation in the wake of Attorney General Michael Mukasey’s decision to not enforce contempt of Congress citations against former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten.
Under a resolution approved in mid-February that allows the House to pursue such a lawsuit, Pelosi is required to “consult” with the Bipartisan Legal Advisory Group — which includes herself as well as Majority Leader Steny Hoyer (D-Md.), Majority Whip James Clyburn (D-S.C.), Minority Leader John Boehner (R-Ohio) and Minority Whip Roy Blunt (R-Mo.) — before authorizing the House general counsel to initiate the case.
Pelosi is expected to consult this week but had not convened the group as of early Monday afternoon. The meeting is largely perfunctory, however, as lawmakers are not required to vote on the authorization.
According to Democratic sources, staff is working expeditiously to finalize the lawsuit, which is expected to be filed in the U.S. District Court for the District of Columbia before the House recesses for two weeks on March 14.
The general counsel, which will file the lawsuit on behalf of the House Judiciary Committee, is expected to urge the federal court to rule on the legitimacy of the Bush administration’s claims that executive privilege protects conversations between Miers and Bolten and the president. The court also could compel both individuals to testify before the House committee.
Democrats had sought testimony from Miers and Bolten in connection to their probe of the firing of nine federal prosecutors in 2006. White House counsel offered to allow the aides to be informally interviewed but not under oath and without a transcript.
Democratic lawmakers declined that offer, and the House subsequently issued contempt citations in July 2007, then voted to enforce those citations last month.
“Our investigation into the firing of United States Attorneys revealed an administration and a Justice Department that seemed to put politics first, and today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden,” Conyers said in a statement Friday. “In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee’s subpoenas.”
Although the House is widely expected to seek expedited action on the case, it remains possible it could stay in the courts even as President Bush leaves office in January 2009. That could require the next president, including the would-be Democratic nominees, Sen. Hillary Rodham Clinton (N.Y.) or Sen. Barack Obama (Ill.), to determine whether to continue the lawsuit or give in to Congressional demands.
“If the case is still pending, there would be decisions that would have to be made, both by the new Congress about whether to continue with the lawsuit ... and more importantly by the new president as to whether to continue to defend against the lawsuit and in effect renew the assertion of executive privilege,” said American University Washington College of Law professor Dan Marcus, himself a former associate attorney general at the Justice Department and general counsel of the 9/11commission.
The most similar recent legal fight over a contempt citation was the 1982 case of former Environmental Protection Agency Administrator Anne Gorsuch Burford, who refused to provide documents to Congress. The U.S. attorney for the District of Columbia refused to impanel a grand jury. In that case, it was the Justice Department that attempted to get a civil court to get an executive privilege ruling in its favor, but the court ordered the case to be resolved politically. There was ultimately a negotiated settlement.