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Contempt Citations Still Pending

As Senate Democrats today prepare to take up the controversial nomination of Michael Mukasey for attorney general, House Democrats are moving forward with their efforts to pass a contempt resolution in the U.S. attorney firings probe that Mukasey would be charged with enforcing.

If the House does pass a contempt measure, it could set up an ugly clash between the likely new attorney general and the White House over claims of executive privilege and Congressional prerogatives.

The House Judiciary Committee on Monday filed an 862-page contempt of Congress report on its July 25 contempt resolution against White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers for documents and testimony related to the scandal. Fifty-six pages of the report were written by Democrats, while the bulk of the remainder consisted of Republican views, supplemented by committee interviews of Justice Department staffers.

The report is a necessary procedural step before a House floor vote can occur, perhaps as early as next week. House Minority Leader John Boehner (R-Ohio) slammed the filing of the report as an example of Democrats’ “misplaced priorities.”

“They’re desperately trying to change the subject,” Boehner commented.

“This is not a confrontation that the Committee — or the Congress — has sought, and it is one that may yet be avoided,” the report argues. “But only if the Congress moves forward to enforce its process.”

“On the merits, the case for contempt is strong,” committee Democrats said.

The report goes on to explain the sequence of events leading up to this point and contends that executive privilege does not apply in this case because the president wasn’t personally involved, there is evidence of “wrongdoing,” Congress has “exhausted” other means of obtaining the desired information, and there is no “overriding” national security concern to prevent testimony or submission of the documents.

Judiciary Committee Democrats further outline “potentially inaccurate statements” by ex-Attorney General Alberto Gonzales, who was forced to resign amid the uproar over the matter, and other Justice Department officials who testified before Congress in the eight-month investigation.

They argue “serious questions remain unanswered,” such as who recommended that the attorneys be fired, and say White House information is “essential” to conducting “meaningful oversight and considering possible federal legislation” such as changing procedures by which federal prosecutors are selected. Democrats also stressed their attempts to find a negotiated solution to the standoff.

Charles Tiefer, a former House counsel and University of Baltimore law professor who wrote an opinion supporting the contempt report, said that intent to negotiate would help Democrats legally.

“The government precedent in the D.C. Circuit, where this would be, puts weight on whether the investigative committee has made efforts like this to resolve the difficulty,” Tiefer said.

All 17 Republicans on the committee dissented and argued that a legal fight would “invite the considerable weakening of the institutional prerogatives of Congress” because it “might very well lose” a court battle.

But House Judiciary Chairman John Conyers (D-Mich.) also offered White House counsel Fred Fielding a way out of a legal confrontation. In his ninth letter on the subject, Conyers set new terms for resolving the dispute and named Friday, Nov. 9, as a deadline.

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