December Subpoena Fight Possible

House Democrats Still Want Votes

Posted November 30, 2007 at 6:30pm

Facing a crowded December calendar, House Democratic leaders say they are “hopeful” that the full House will consider a motion of contempt against senior Bush administration officials before the end of the year.

Meanwhile, the Senate Judiciary Committee last week took a step forward in its own parallel subpoena battle when Chairman Patrick Leahy (D-Vt.) issued a ruling rejecting White House claims of executive privilege as “overbroad, unsubstantiated and not legally valid.”

In a statement to the magazine Mother Jones, Brendan Daly, a spokesman for Speaker Nancy Pelosi (D-Calif.), said House Democrats had the votes to move forward with a contempt citation against former White House counsel Harriet Miers and White House Chief of Staff Josh Bolten for refusing to provide documents and testimony in the U.S. attorneys probe.

“It appears that we do [have the votes] and the Speaker said it’s likely we’d go forward,” Daly said.

“We want to have a bill before the end of the year,” a House Democratic leadership aide said on Friday.

“The chairman believes a House vote on contempt is critical to maintaining Congressional oversight. He is working with leadership and hopes a vote will be scheduled soon,” added a spokeswoman for the House Judiciary Committee, chaired by Rep. John Conyers (D-Mich.).

Before Thanksgiving, there were suggestions of a rift between Pelosi and House Democratic Caucus Chairman Rahm Emanuel (Ill.) about the expediency of pursuing such a motion when Democrats already were battling the White House on Iraq and the budget.

But Democratic freshmen, among the most vulnerable Members up for re-election in 2008, have been whipping the issue and appear to be on board, according to Democratic aides.

Democratic pollster Alan Secrest of Cooper & Secrest, who works for several Democratic freshmen, said he doesn’t see any political downside to pursuing the contempt vote at this time.

“The twin towers of voter concern in 2006 were the perceived indifference and incompetence in Congress and in this administration,” Secrest said. “As a result, then and now voters are very much interested in accountability.”

Secrest said the issue would work in the Democrats’ favor as long as it was framed as “a question of holding accountable public servants who operated without a shred of concern about being held accountable in the past.”

Scott Simpson, a strategist with the polling firm Hamilton and Associates, which polled for the House and Senate Democratic campaign arms in 2006, agreed.

“People still want to know that justice is working and fair,” Simpson said. “It’s obviously not going to carry Democrats over the finish line, but I don’t think it’s a dangerous thing at this point.”

But Brian Kennedy, a spokesman for House Minority Leader John Boehner (R-Ohio), said Democrats should be careful.

“With the clock ticking down, Democrats still have a pile of the people’s business left to complete, so it would be very telling if they chose to spend the remaining time playing politics instead of getting real work done.”

On July 25, the House Judiciary Committee issued the contempt citations for documents and testimony from Miers and Bolten. As Conyers filed the report, a necessary precursor to floor action, he wrote a ninth and final letter to White House counsel Fred Fielding offering to interview officials without an oath, a key concession to Fielding’s terms.

But the White House rejected that offer. Claiming executive privilege, Fielding has not budged from his initial offer in March of allowing aides to be interviewed without an oath and in the absence of a transcript, Democrats said.

Last week, Leahy rejected Fielding’s arguments and called for the officials subpoenaed by his committee to “immediately comply.” If not, the Senate Judiciary Committee could issue a contempt citation as early as Thursday at its executive business meeting.

On June 13, the Senate committee issued subpoenas for documents from Bolten and testimony and documents from ex-Bush political guru Karl Rove, former White House Political Director Sara Taylor and her deputy, Scott Jennings.

Taylor and Jennings appeared before Leahy’s committee over the summer, but refused to answer many questions on grounds of executive privilege.

In his statement last week, Leahy called it “surprising” that Fielding has asserted executive privilege in preventing the testimony of Rove and other Bush aides because there is “significant and uncontroverted evidence that the President had no involvement in these firings.”

Leahy cited the lack of a privilege log or the provision of a “specific factual basis” by the White House as proof that the executive privilege claim was invalid.

“Despite mounting evidence of significant involvement by White House political officials, the White House did not produce a single document or allow even one White House employee or former employee involved in these matters to be interviewed voluntarily,” he said.

If the full House approves its contempt citation, the issue is likely to end in a legal standoff that may not necessarily work in Congress’ or the Democrats’ favor.

If the House passes the citation, Congressional Democrats say the U.S. attorney for the District of Columbia would be required to impanel a grand jury to investigate the matter.

But Republicans argue that is not necessarily the case. In 1982, for instance, the prosecutor refused to establish a grand jury in the case of former Environmental Protection Agency Administrator Anne Gorsuch Burford, who had refused to provide documents to Congress. A negotiated political settlement ultimately was reached.

New Attorney General Michael Mukasey, who was narrowly confirmed after Senate Democrats raged against his stance on the controversial interrogation method known as waterboarding, would ultimately be charged with enforcing the citation.

During his Senate confirmation hearings, Mukasey said he would not want to be in the position of making that decision.