The House voted Thursday to refer to the Justice Department criminal contempt charges against two Bush administration advisors who refused to cooperate with a congressional inquiry last year into the firing of U.S. attorneys.
The resolution was the first time in more than two decades that a chamber of Congress had backed a contempt of Congress citation. It also marked an escalation in a dispute between House Democrats and the White House over the breadth of executive privilege, signaling a possible court fight.
Held in contempt were White House Chief of Staff Joshua B. Bolten and former White House Counsel Harriet E. Miers, who last summer failed to answer subpoenas issued by the House Judiciary Committee.
The panel was investigating the 2006 firings of nine U.S. attorneys, which Democrats think was politically motivated. The controversy later contributed to the resignation of Atty. Gen. Alberto R. Gonzales.
The contempt resolution was approved 223 to 32. But Republicans boycotted the vote and heaped scorn on the majority for not using the time to take up Senate-passed revisions to the Foreign Intelligence Surveillance Act, which expires this weekend.
"We will not stand idly by and watch the floor of the U.S. House of Representatives be abused for pure political grandstanding at the expense of our national security," said House Minority Leader John A. Boehner (R-Ohio), leading Republicans in a walkout before the vote.
Democrats accused Republicans of pulling a political stunt. They said the contempt question was hardly a partisan issue because it concerned the system of checks and balances under the Constitution. Choosing not to enforce the subpoenas would be giving "tacit consent to the dangerous idea of an imperial presidency, above the law," said House Majority Leader Steny H. Hoyer (D-Md.).
The action was at least partly symbolic. Atty. Gen. Michael B. Mukasey has indicated that the Justice Department will not pursue contempt charges. He has cited a legal opinion that under the doctrine of executive privilege -- which protects executive branch officials from having to disclose certain internal deliberations to other branches of government -- Miers and Bolten did not have to testify.
Under the law, contempt of Congress charges are investigated by the U.S. attorney for the District of Columbia. But the Justice Department has taken the position in previous cases that it will not allow a U.S. attorney to conduct such an investigation if the department has determined that executive privilege was well-founded.
Mukasey has been out of the country and was unavailable to respond Thursday.
The Justice Department said the referral had not been formally transmitted as of late Thursday afternoon.
Justice Department spokesman Brian Roehrkasse cited testimony that Mukasey gave last week to the House Judiciary Committee, in which he said he did not expect to break with department precedent in reviewing the contempt petition. Roehrkasse said he expected Mukasey to act promptly on the petition once he had an opportunity to review it.
The White House criticized the vote in unusually harsh terms.
"This action is unprecedented, and it is outrageous," said White House Press Secretary Dana Perino. "It is also an incredible waste of time -- time the House should spend doing the American people's legislative business."
Under the resolution, even if the Justice Department declines to investigate, the House can file its own civil lawsuit against Miers and Bolten. Such a suit would be filed in federal court in Washington by the general counsel of the House. It could come at any time and would not depend on the approval of the Justice Department.
Legal experts disagree over whether a court would have the jurisdiction to entertain such a lawsuit. Nowhere is the authority to file such a suit mentioned in federal law. Its proponents say the authority of the House to enforce its own rules is ingrained in the Constitution.
Only twice since the Watergate investigations of the mid-1970s has the full House voted to hold an administration official in contempt of Congress. Both cases stemmed from congressional investigations of the Environmental Protection Agency during the Reagan administration.
Usually, disputes about congressional access to documents and testimony are resolved through negotiations. The White House has agreed to make officials available for interviews in the U.S. attorney case. But lawmakers have said the conditions attached -- the White House has insisted the interviews be done privately without a transcript -- are unacceptable.
"If the House Democrats try to bring a civil case in federal court, they will be met with opposition at the courthouse door and at every step of the way," Perino said, adding: "We are confident that the administration will prevail against this unprecedented and wholly unwarranted vote of contempt."