House Files Suit Over Subpoenas

Posted March 10, 2008 at 6:48pm

Seeking to enforce a contempt resolution against senior White House officials, the House Judiciary Committee waded into what is likely to be a protracted legal battle on Monday by filing an unprecedented civil lawsuit against the presidential aides.

The lawsuit seeks to enforce subpoenas issued by House Democrats in their struggle with the Bush administration over testimony and documents related to the allegedly political firings of nine U.S. attorneys in 2006. Democrats suspect that the firings originated in the White House, but Republicans argue that dismissal is part of the president’s prerogative.

The lawsuit marks the first time that the House or a House committee has filed a civil suit, according to Judiciary Committee aides. They said the legal wrangling could last well past the installation of a new president in January 2009.

“The committee’s interest in this doesn’t stop with the November elections or Jan. 20 of next year,” said a Judiciary Committee attorney. “The committee will try to pursue this to get to the truth on the matter.”

But the House counsel, who is representing the Judiciary Committee in the matter, plans to seek an expedited schedule in the U.S District Court for the District of Columbia.

Judge John Bates, who was appointed by President Bush in 2002, has been assigned the case, which may be bad news for House Democrats. Bates also serves on the Foreign Intelligence Surveillance Court.

Bates ruled against the Government Accountability Office in Walker v. Cheney, in which the agency attempted to get information about energy executives who met privately with Vice President Cheney in 2001.

In that case, Bates sidestepped the executive privilege question by arguing that Comptroller General David Walker lacked the legal “standing” to sue the vice president. The GAO later abandoned its legal efforts to obtain the records.

Despite their lawsuit, Democrats emphasized that they were still hoping to find a political solution. But White House counsel Fred Fielding hasn’t budged from his position — offering interviews with high-ranking administration officials including Harriet Miers and ex-White House political guru Karl Rove, who has been subpoenaed by the Senate in the same matter, but without a transcript or oath.

“The House stands ready, as it has throughout this dispute with the administration, to discuss terms under which necessary testimony and information can be provided consistent with the need to ensure accountability and veracity,” stated Speaker Nancy Pelosi (D-Calif.).

Democrats rejected Fielding’s original conditions, and Pelosi brought the contempt motion to the floor on Feb. 14, where it was approved on a 223-32 party-line vote, with Republicans protesting by walking out of the chamber.

Attorney General Michael Mukasey then declined to refer the matter to the U.S. attorney for the District of Columbia, prompting Democrats to file their lawsuit on Monday.

“We will not allow the administration to steamroll Congress,” Judiciary Chairman John Conyers (D-Mich.) said.

Former Rep. Mickey Edwards (R-Okla.), an attorney who is seeking GOP converts on the issue, said that Congressional prerogatives should outweigh political loyalty in this matter.

“This really isn’t about party. It’s about separation of powers,” Edwards said. “At this point, it is very important for the Congress … to stand up and insist that its oversight responsibilities have to be carried out.”

White House spokeswoman Dana Perino called the lawsuit “partisan theater” in a briefing Monday.

Perino also reasserted the administration claim to executive privilege, arguing that “the confidentiality that the president receives from his senior advisers and the constitutional separation of powers should be protected from overreaching.”

House Republicans also slammed the decision. Michael Steel, a spokesman for House Minority Leader John Boehner (R-Ohio), called the suit a “partisan political stunt” that was a “complete waste of time.”

Judiciary ranking member Lamar Smith (R-Texas) called the lawsuit a “misuse of Congressional authority and a waste of time” and pointed to a “dangerous precedent” for Congressional prerogatives if the courts ruled against it.

Democrats are seeking to counter the “sweeping and legally unsound” view of executive privilege claimed by the White House in the matter, according to their 35-page brief.

They argue that Miers cannot be “immune” to a subpoena to appear before a House committee, as the White House has argued. They are demanding all relevant “privilege logs” covering documents withheld under executive privilege, and the immediate release of unprivileged materials.

In perhaps the thorniest legal point, Democrats argue that executive privilege doesn’t cover documents not directly involving the president or undertaken in preparation for advising the president.

The brief contends that the president “has, at best, a generalized interest in confidentiality and has no valid claim of executive privilege because the Administration has represented that the President was not involved in any way in the forced resignations of the nine U.S. attorneys.”

Democrats say the civil suit is unprecedented in several ways. It most closely resembles the 1982 contempt case lodged against former Environmental Protection Agency Administrator Anne Gorsuch Burford, who refused to provide documents to Congress concerning cleanup of hazardous waste sites.

In that case, it was the Justice Department that attempted to get a civil court ruling on executive privilege, but the court ordered the case to be resolved politically, resulting in a negotiated political settlement.

Committee lawyers pointed out that the 1982 case involved open investigative files, while this one involves information similar to what already has been voluminously produced by the Justice Department.