House Takes Two Tracks on Contempt

Posted February 13, 2008 at 6:25pm

Pursuing a two-track strategy that could define the scope of the Bush administration’s broad claims of executive privilege, House Democrats today will take up long-standing contempt charges against former and current White House officials.

Urged on by left-leaning bloggers and House Judiciary Chairman John Conyers (D-Mich.), House Democratic leaders finally gave the go-ahead to consider the motion, which is likely to set up a lengthy legal fight with the White House.

“It is a step that is clearly necessary to preserve the role and constitutional prerogative of Congress as an institution,” Conyers said Wednesday.

On July 25, House Democrats issued contempt citations for documents and testimony from former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten in their probe stemming from the suspicious firing of nine federal prosecutors in 2006. On Dec. 13, the Senate Judiciary Committee issued its own contempt motion to Bolten and ex-White House political guru Karl Rove.

Claiming executive privilege protected their conversations with the president, White House counsel Fred Fielding offered to allow the aides to be informally interviewed, but not under oath and without a transcript. But Democrats refused that offer and say that negotiations with Fielding have gone nowhere since then.

Conyers and House Democratic Caucus Chairman Rahm Emanuel (Ill.) had battled over whether it was prudent to bring the politically charged resolution to the floor in a competitive election year when Democrats are fighting to maintain their majority.

“The Judiciary Committee has made repeated attempts to work cooperatively with the White House, but we must move forward now as the information subpoenaed is crucial to the committee’s ongoing investigation,” said one Democratic leadership aide.

Democratic lawmakers and aides denied Wednesday that any specific trigger prompted the sudden reanimation of the contempt citations, asserting that the measure had marinated long enough since its initial passage.

“We have space on the calendar,” House Majority Leader Steny Hoyer (D-Md.) said Wednesday. “Mr. Conyers has been working very, very hard to get some agreement with the administration and has had some nine to 12 different efforts to try to get some cooperation from the White House, and they have not been willing to do that.”

Hoyer added: “Mr. Conyers believes correctly that the matter here is not about Josh Bolten or Harriet Miers; it is about whether or not the Congress of the United States, acting pursuant to its Article 1 authority, has the ability to get information that it needs from the executive to legislate properly.”

But it appears Democrats also might have been waiting to see how fledgling Attorney General Michael Mukasey would address their complaints. Conyers noted Wednesday that in a recent appearance before the Judiciary panel, Mukasey confirmed he would maintain his predecessor’s logic and would not enforce the contempt citations.

“It’s not something we want to do, but it puts us where we are,” said a House leadership aide, who asked not to be identified.

Democratic activists also have weighed in, with members of the liberal American Freedom Campaign, founded in part by MoveOn.org co-founder Wes Boyd, sending 19,000 e-mails to Congress urging a vote.

But Rep. Jerrold Nadler (D-N.Y.) insisted liberal activists, notably those who have called for more stringent actions, including impeachment of Vice President Cheney, did not prompt today’s expected vote.

“This has nothing to do with that,” Nadler said. “This is something on its own merit that has to be done. … [The Bush administration] threw a gauntlet down in front of us. We have no choice.”

The rule governs two resolutions — the first is the actual contempt motion that would instruct the Speaker to refer the resolution to the U.S. Attorney’s Office for the District of Columbia. Democrats believe that the law then requires U.S. Attorney Jeffrey Taylor to impanel a grand jury, but Republicans disagree.

Mukasey repeatedly has told Congress that there is well-established legal precedent confirming the existence of executive privilege. Mukasey replaced former Attorney General Alberto Gonzales, who was ousted as a result of the prosecutor scandal.

But Democrats are prepared if Taylor refuses to impanel a grand jury. They plan to take up on the floor a second resolution that would give the Judiciary Committee standing to proceed to civil litigation that would address the executive privilege claim.

According to that resolution, Democrats would be “authorized to initiate or intervene in judicial proceedings in any federal court of competent jurisdiction” to “seek a declaratory judgment” on the matter.

Practically, that means that a judge could order Miers and Bolten to testify and would thereby rule on the White House’s executive privilege claim.

Conyers said Democrats drew from recommendations of Rep. Jim Sensenbrenner (R-Wis.), the former Judiciary chairman, who had recommended the House file a civil lawsuit to enforce the subpoenas rather than seek the contempt citations.

But Conyers said the House must follow legal precedent and first seek criminal action: “The courts have made clear statutory contempt must be tried first,” Conyers said.

Bruce Fein, a former counsel to Congress in the Iran-Contra probe and an ex-deputy attorney general under Ronald Reagan, said that Democrats were likely to lose the first battle but could win the second.

“A court can’t order an attorney general or U.S. attorney to commence a grand jury investigation,” Fein stated. “That clearly is a dry hole.”

But, Fein argued, Congress could “win hands down” a civil suit in which a judge would issue an order for Miers and Bolten to comply with a Congressional subpoena. Fein compared President Bush’s claim of executive privilege in the U.S. attorneys investigation to President Richard Nixon attempting to block ex-White House counsel John Dean from testifying before Congress’ Watergate committee.

“This is the most aggressive executive privilege claim ever,” Fein said. “It would be the equivalent of Nixon telling John Dean he couldn’t testify.”

But GOP lawmakers disagree, asserting the tactic could backfire, and argue Democrats should largely drop the complaint, noting that many of the key figures — including Gonzales, Miers and Rove — have left office.

“We’re going to end up in court. We’re probably going to lose and at that point we will have enhanced the power of the executive branch” at the expense of the Congress, said Judiciary ranking member Lamar Smith (R-Texas).

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 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.