Panel approves contempt proceedings
A House committee voted Wednesday to endorse the criminal prosecution of President Bush’s chief of staff, Joshua Bolten, and former White House Counsel Harriet E. Miers for refusing to cooperate with a congressional probe into the firings of U.S. attorneys last year.
The 22-17 party-line vote of the judiciary committee calling for contempt-of-Congress proceedings against the two aides was referred to the full House for consideration. That vote is expected to occur after Labor Day, when Congress returns from its August recess.
The panel’s move escalates a growing legal and political battle between Congress and the White House, and sets the stage for what would be the first congressional contempt citation of an executive branch official since the Reagan administration.
However, it is far from clear whether those moves will resolve the underlying dispute about access to White House officials and documents that might illuminate the roles of Bush administration insiders in the U.S. attorneys affair. Some Democrats suspect that eight prosecutors were fired to make way for partisans who would bring cases that would further the interests of the Republican Party.
Lawmakers privately conceded that the White House seemed to be holding the cards; moving a contempt case forward requires the Justice Department to prosecute it, and the White House has said that will not happen. Democrats have begun exploring an alternative: the possibility of launching an unprecedented civil lawsuit on behalf of the House to get the privilege claims sorted out by a federal judge.
Miers, who was White House counsel in 2005 when the issue of replacing prosecutors was first discussed within the administration, was subpoenaed to testify July 12 before the House committee. Bolten was the target of a separate subpoena seeking White House documents about the firings.
Based on the advice of current White House Counsel Fred F. Fielding, both declined to comply with the subpoenas; Miers did not even appear at her scheduled hearing. The White House has said evidence about internal White House deliberations into the firings is covered by the doctrine of executive privilege.
Buttressing their case, Democrats prepared a report Wednesday that cited evidence that the decision to fire or retain some U.S. attorneys may have been based in part on whether “their offices were pursuing or not pursuing public corruption or vote fraud cases based on partisan political factors.”
The report also cited evidence that Justice Department officials made “false or misleading statements to Congress” and that some department personnel possibly violated civil service laws by injecting political considerations into the hirings of career Justice employees.
Republicans said the contempt proceedings were premature and unproductive, and an act of political theater.
“In our view, this is pathetic,” White House Press Secretary Tony Snow said shortly after the committee’s vote. “Based on legal precedent, this is something that the drafters of this particular referral know has very little chance of going anywhere. And so the questions is: Why are they doing this rather than the people’s business?”
Democrats said that the refusal of the White House to cooperate in the investigation left them with little choice but to act to defend the right of Congress under the Constitution to serve as a check on executive power.
“If we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn’t even have to bother to show up, where privilege can be asserted on the thinnest basis and in the broadest possible manner, then we’ve already lost,” said Rep. John Conyers Jr. (D-Mich.), the committee chairman. “We won’t be able to get anybody in front of this committee or any other.”
It has been 24 years since an administration official has been cited for contempt of Congress. In 1982, Environmental Protection Agency Administrator Anne M. Gorsuch Burford refused to turn over documents under orders from President Reagan. The Justice Department refused to prosecute her. A year later, another EPA official, Rita Lavelle, refused to appear before a House committee. Lavelle was acquitted of the contempt charge but was later convicted of perjury in another trial.
Criminal contempt of Congress is a misdemeanor punishable by one to 12 months in jail and $100 to $1,000 in fines. If the full House were to approve the contempt resolution, the criminal case against Miers and Bolten would ordinarily be referred to the U.S. attorney for the District of Columbia.
The Justice Department has already said it would not pursue criminal charges because of what it said was a long-standing policy giving immunity to presidential aides who invoke executive privilege for failing to comply with congressional subpoenas. The department said in a letter to the committee on Tuesday that the same policy applies to former aides such as Miers.
Legal experts said the decision not to prosecute would probably be binding on the U.S. attorney.
“As a practical matter, once the Department of Justice has determined, rightly or wrongly, that the assertion of executive privilege is valid, that would eliminate the possibility of a lower official in the department bringing a prosecution,” said Walter E. Dellinger III, a professor at Duke University law school and former U.S. solicitor general in the Clinton administration.
In the event that the criminal case stalls, Congress could file a civil lawsuit against Miers and Bolten in federal court. That idea has drawn support even from some Republicans. Rep. F. James Sensenbrenner Jr. (R-Wis.) said Wednesday he preferred the idea of having a neutral court assessing the privilege arguments rather than embarking on what he said was a divisive criminal contempt proceeding that Congress seemed destined to lose.
“That is going to be viewed as a blank check by the present president and the future president to do whatever they want to effectively stiff the Congress in discharging their oversight responsibilities,” he said.
But some legal experts said the civil suit route is problematic as well. No federal statute authorizes such litigation. In the Senate, rules permit that chamber to initiate civil contempt proceedings in some cases, but such rules do not apply in the House.
Charles Tiefer, a former House counsel who teaches at the University of Baltimore law school, said a court would likely dismiss such a suit in the absence of a statute authorizing it.
But he predicted that, as with privilege fights over the years between the branches of government, the White House would ultimately capitulate: “Congress will win this, as it always does. The pressure will build and build until Bush turns over the evidence of the scandal.”