‘File a Suit’ Editorial Misses The Mark

Posted November 12, 2007 at 5:59pm

Your Nov. 7 editorial (“File a Suit”) on the House Judiciary Committee’s recently filed contempt report on the U.S. attorney scandal is off the mark on several counts.

Perhaps the most important point that was missed is that moving contempt forward is critical to Congress as an institution.

In an unprecedented fashion, the executive branch has determined it has the unilateral authority to prevent witnesses from providing any testimony and to withhold all documents from the Congress, even with respect to testimony that it concedes is not privileged.

If the executive branch can ignore Congressional subpoenas, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our responsibility to protect it.

The editorial cites “four possible avenues ahead here.” Unfortunately, the editorial’s most preferred options — continued negotiations and filing a civil suit — are either not available at this time or already have been exhausted unless the White House rapidly changes course.

Resolving this matter through negotiations with the White House has been my goal for more than eight months and in nine separate letters.

The White House simply ignored a number of these letters. In their only attempt to “negotiate,” the offer was and still is unacceptable: to allow us to only see communications between the White House and others but no internal documents; to permit strictly informal interviews of White House staff with neither an oath nor a transcript; to forbid questions about internal White House discussions; and to require that we agree in advance not to ask anything further no matter what was discovered.

No self-respecting committee could agree to those terms, and the White House has not budged or even agreed to talk since March.

Last week, I suggested we reach an agreement based on procedures this administration already agreed to in other circumstances: an initial confidential staff review of internal White House documents and staff interviews of White House personnel, without an oath or the “trappings of a hearing,” but with a transcript.

Instead of negotiating terms in good faith, the White House stated that it “won’t go anywhere.” The editorial also suggests that a civil lawsuit be filed, rather than pursuing our current route toward statutory contempt. However, the Washington, D.C., federal district court has rejected filing a civil lawsuit first and stated that statutory remedies should be pursued before the civil litigation option.

In U.S. v. House of Representatives, the Justice Department tried to get a civil court ruling that executive privilege justified the refusal to produce documents by Environmental Protection Agency Administrator Anne Gorsuch, who was cited by the House for statutory contempt.

The proper course, the court ruled, was to “defer to established statutory [contempt] procedures” before seeking to “resolve the constitutional controversy in the context of a civil action.” Finally, I do not believe that dropping the whole matter would be a prudent course.

In stark contrast to the editorial’s questions whether this investigation has been “worth the effort” and accusations that it has been partisan, former Reagan administration Attorney General Richard Thornburgh has described the investigation as follows: “the Department in its evaluation of United States Attorneys, in certain cases, fired United States Attorneys, not for performance-based reasons but for political ones [and] those United States Attorneys who, inter alia, aggressively pursued Democrats, as opposed to those that did not, remained in place or were promoted.”

The American Judicature Society has written “the fingerprints of the White House are very visible” in the firings. But beyond that, this is about maintaining the integrity of Congress as an institution. It is about the ability of this Congress and future Congresses, Republican- or Democratic- led, to provide accountability by seeking answers on behalf of the American people. As former House Counsel Charles Tiefer put it, “it is vital to bring this to a House vote.”

Rep. John Conyers (D-Mich.) is chairman of the Judiciary Committee.