Contempt Citations Still Pending

Posted November 5, 2007 at 6:34pm

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.

In the letter, Conyers wrote that the committee would be willing to interview select witnesses “on-the-record,” but not under oath in sessions similar to the ones in which testimony was received by Congress from multiple Justice Department officials.

Fielding had previously offered to allow White House aides — including former White House political adviser Karl Rove — to testify, but not under oath and without a transcript.

Conyers further proposed allowing staff to review internal White House documents related to the investigation before releasing any of them publicly. And he asked for the White House to release communications between itself and third parties about the prosecutor firings, a term to which Fielding has previously agreed.

“It’s a very serious offer. It represents a major step towards compromise by the House,” Tiefer said.

Tiefer explained that allowing White House officials to testify without an oath creates a “symbolism that is extraordinarily important to the White House.”

Tiefer argued that while it still would be possible to prosecute an official for lying under the false statements statute, it would be “much, much easier to convict somebody of perjury for false testimony under oath, where the statute is written to facilitate the conviction.”

But Stan Brand, an ethics attorney and former House counsel, countered that Fielding was unlikely to accept the new offer. He argued that the White House was likely betting that the Justice Department wouldn’t pursue prosecution of the matter if it reached the court system.

“I think they [the White House] have taken a pretty extreme position and Fred Fielding knows the case law and how hard it is to get this stuff litigated,” Brand said. “It’s a little bit of a game of chicken.”

In a March 20 letter claiming executive privilege as a justification, Fielding outlined the initial terms of his offer: No interviews with aides or former aides with a transcript or under oath, and no release of internal communications between White House officials.

But Democrats refused those terms and negotiations have not budged much since then, despite Gonzales’ resignation.

If the White House declines Conyers’ offer and a contempt resolution is passed, the Speaker would be required to refer it to the U.S. attorney for the District of Columbia for grand jury action.

But there is controversy over whether the prosecutor actually is required to impanel a grand jury. In 1982, in the case of former Environmental Protection Agency Administrator Anne Gorsuch Burford, the federal prosecutor refused.

In other words, it would be up to the new attorney general to decide whether to enforce the contempt motion.

“I hope and pray for a lot of things. One of them is that I don’t ever have to make that decision,” Mukasey told Senators at his confirmation hearings.