Defying Mukasey, Congress Sues Bolten, Miers
t r u t h o u t | Report
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