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Defying Mukasey, Congress Sues Bolten, Miers
By Christopher Kuttruff
t r u t h o u t | Report
Tuesday 11 March 2008
On Monday, House Democrats filed a lawsuit against former White House counsel
Harriet Miers and White House chief of staff Joshua Bolten, after Attorney General
Michael Mukasey refused last week to enforce Congressional subpoenas.
"I do not take this step lightly," said John Conyers, chairman of
the House Judiciary Committee. "It is extremely rare that Congress must
litigate in order to enforce subpoenas and no compromise can be reached. Unfortunately,
this administration simply will not negotiate towards a compromise resolution
so we must proceed."
After months of delay, the House finally moved forward in mid-February on a
vote to hold Bolten and Miers in contempt of Congress. This vote - the first
of its kind in 25 years - was brought to the floor due to Miers's and Bolten's
refusal to comply with subpoenas issued by the House Judiciary Committee, which
was investigating the abrupt firing of nine US attorneys. [1]
The December 2006 firings created significant controversy due to the potential
motivations behind them. For example, in October 2006, Republican Sen. Pete
Domenici called David Iglesias, the US attorney from New Mexico, and inquired
about the status of an investigation of at least one Democratic state senator.
The phone call, which many legal experts deem a violation of Congressional ethics
rules, came two months before the firing of Mr. Iglesias. [2] Iglesias noted
he felt a sense of pressure and unease, given the unusual nature of the call.
According to McClatchy, David Iglesias states in his upcoming book that US
Attorney Johnny Sutton told Iglesias the firing was political, and he should
"just go quietly." [3]
This event, along with similar incidents, led many in Congress to seriously
question the motivation behind the replacements.
Miers and Bolten were positionally central to deliberations involving these
dismissals; thus, many in Congress feel their testimony is crucial to conducting
a thorough investigation. After their refusal to appear before the committee,
the House eventually found it necessary to hold the two White House aides in
contempt of Congress.
The investigations into the firing of the attorneys involved testimony from
former Deputy Attorney General James Comey, then Attorney General Alberto Gonzales,
Monica Goodling, former senior counsel to Attorney General Alberto Gonzales,
and Paul McNulty, deputy attorney general. While several of these witnesses
frequently invoked executive privilege to avoid certain lines of questioning,
only Miers and Bolten (acting upon White House instruction) refused outright
to comply with the subpoenas.
"On June 28, 2007, White House Counsel Fred Fielding wrote that the White
House would refuse to produce any documents pursuant to the subpoena issued
to Mr. Bolten based on executive privilege," states the Judiciary Committee's
November contempt report. "Chairman Conyers and Chairman Leahy requested
that the White House provide a privilege log to set forth the factual and legal
basis for any claims of privilege as to each document being withheld, as well
as a signed statement by the President asserting any privilege by July 9, 2007.
In a letter dated July 9, 2007, Mr. Fielding declined." [4]
Many legal experts point to the contradiction of the White House's claim of
executive privilege: If the President has denied any involvement in the dismissal
of the attorneys (which he has vociferously done), then how can he deny Congress
access to those involved in the firings, since any aspects of such an investigation
would not involve communication between the president and his advisers? [5]
Peter Shane, an Ohio State law professor who specializes in separation of powers,
told Truthout that "it's critical to maintain a catalog of information
at issue" - something the administration has refused to provide. Because
of this lack of disclosure, Shane states in an article in The Jurist, "it
is not clear that the documents at issue are even properly within the category
of materials about which the executive branch can legally claim executive privilege
as against another branch of government."
While the potential legal battle is indeed a rarity, Shane explains precedence
certainly exists for allowing the civil suit to proceed ... he cites the civil
suit brought against the Nixon reelection committee. The professor emphasizes
"balancing of the competing institutional interests of the legislative
and executive branches" is a core necessity, and this balancing needs to
be conducted, if not by Congressional committee, by the courts.
Chairman of the Senate Judiciary Committee Patrick Leahy has also vigorously
examined the president's broad use of executive authority: "the complete
lack of particularity of the White House claims, including the lack of a privilege
log or any specific factual basis for the privilege claims, makes the scope
of the claims improper." [6]
In a February 28 letter to Mukasey, House Speaker Nancy Pelosi formally requested
the matter of contempt be referred to the US attorney of the District of Columbia,
Jeffrey Taylor. She also challenged Mukasey's view of executive privilege:
"There is no authority by which persons may wholly ignore a subpoena and
fail to appear as directed because a President unilaterally instructs them to
do so. Even if a subpoenaed witness intends to assert a privilege in response
to questions, the witness is not at liberty to disregard the subpoena and fail
to appear at the required time and place. Surely, your Department would not
tolerate that type of action if the witness were subpoenaed to a federal grand
jury. Short of a formal assertion of executive privilege, which cannot be made
in this case, there is no authority that permits a President to advise anyone
to ignore a duly issued congressional subpoena for documents." [7]
However, on March 1, Mukasey denied the request to refer the matter to a federal
grand jury, writing to Speaker Pelosi, "The department will not bring the
Congressional contempt citations before a grand jury or take any other action
to prosecute Mr. Bolten or Ms. Miers."
In response, Speaker Nancy Pelosi said she will bring a civil lawsuit forward
against Miers and Bolten. Left with few alternative oversight measures, Congress
has decided to move forward with a civil suit.
The Bush administration's rigidity stems from its extremely expansive view
of executive authority. Its legal rationale, forged by neoconservatives such
as John Yoo and David Addington from the Office of Legal Counsel, tips the balance
of power toward the executive branch and creates a paradigm that many legal
experts find contrary to precedent and common constitutional interpretation.
This is evidenced by, in part, the president's extensive use of signing statements,
which, many argue, amount to a line-item veto. [8]
This narrow and uncompromising stance has put Congress in a difficult position,
forced to forfeit oversight to a stubborn executive or take more forceful measures.
Pelosi, though she hopes to reach some compromise with the White House, stressed
on Thursday the legal battle would continue into the next administration if
necessary. [9]
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Christopher Kuttruff is a frequent contributor to Truthout.org.
Additional reporting and editing by Matt Renner and Maya Schenwar.
[1] http://thehill.com/leading-the-news/house-finds-white-house-officials-in-contempt-of-congress-2008-02-14.html
[2] http://www.washingtonpost.com/wp-dyn/content/article/2007/03/04/AR2007030400507.html
[3] http://www.mcclatchydc.com/244/story/29698.html
[4] http://judiciary.house.gov/Media/PDFS/ContemptReport071105.pdf
[5] http://jurist.law.pitt.edu/forumy/2007/12/senator-leahy-executive-power-and-rule.php
[6] http://leahy.senate.gov/press/200711/112907a.html
[7] http://www.speaker.gov/blog/?p=1171
[8] http://www.newyorker.com/archive/2006/07/03/060703fa_fact1?currentPage=10
[9] http://rawstory.com/news/2008/Pelosi_Dems_absolutely_will_continue_pursuing_0306.html
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