Wednesday, August 01, 2007
Panel votes to hold two Bush aides in contempt of Congress
By Neil A. Lewis
Thursday, July 26, 2007
WASHINGTON: The House Judiciary Committee voted along party lines on Wednesday to hold President George W. Bush's chief of staff and the former White House counsel in contempt of Congress.
The issue now goes before the full House, where the Democrats who control the chamber suggested it would not be taken up until after the August recess.
In the debate before the 22-to-17 vote to pass the contempt resolution, Democrats on the committee firmly rejected the White House argument that the invocation of executive privilege blocked Congress from obtaining information from Harriet Miers, the former White House counsel, or Joshua Bolten, the chief of staff.
The Judiciary Committee had issued subpoenas seeking testimony from Miers and documents from Bolten as part of an investigation into whether there was any improper political influence in the dismissal of several federal prosecutors.
Representative John Conyers Jr., the Michigan Democrat who is chairman of the committee, said the action was needed "not only to gain an accurate picture of the facts surrounding the U.S. attorneys controversy, but to protect our constitutional prerogatives as a co-equal branch of government."
Representative Lamar Smith of Texas, the committee's ranking Republican, dismissed the contempt citation as part of a political game and a waste of public money. Citing administration officials' comments about the dismissals, Smith said they demonstrated that "there was no evidence of wrongdoing" in firing the prosecutors. In the full House, the Democratic leaders made it clear that they fully intend to use their majority to vote the contempt citation in September unless the White House relents.
What would happen after that is unclear.
A Justice Department official on Tuesday affirmed earlier comments from a White House spokesman that any effort to enforce the contempt citation would be futile. To do so, the House or Senate would have to ask the United States attorney for the District of Columbia to convene a grand jury with the aim of indicting Miers and Bolten.
But in a letter to the Judiciary Committee, Brian Benczkowski, the principal deputy assistant attorney general, cited Justice Department internal legal memorandums from both Democratic and Republican administrations, saying "the criminal contempt of Congress statute does not apply to the president or presidential subordinates who assert executive privilege."
James Hamilton, a Washington lawyer and leading authority on congressional powers of investigation, said that while the White House view might be flawed, it could still prevail.
"The notion that executive privilege automatically trumps a congressional subpoena is not supported by precedent," said Hamilton, who has written widely on the subject. A new report from the nonpartisan congressional Research Service concurred with him, saying that the internal Justice Department memorandums are open to question on factual, legal and constitutional grounds.
Nonetheless, Hamilton said the administration probably has the ability to order the federal prosecutor not to bring contempt charges.
Congress could conduct a trial, but that procedure would be cumbersome and has not been used in nearly a century. Beyond that, Hamilton said Congress might be left with only the option of seeking political recourse. "Congress has lots of arrows in its quiver," he said. "If Congress gets stiffed, it could respond in many ways" including rejecting some of the president's legislative programs.
In a letter on Wednesday to Fred Fielding, the White House counsel, Conyers implored officials to seek a compromise with Congress. The White House has refused separate requests for information from the House and the Senate, citing executive privilege, which courts have recognized as the right of a president to withhold information in some circumstances to ensure that aides can offer candid advice free from worry that their words might later be disclosed.
The White House has offered to have Miers and others answer questions in a closed session that would not be transcribed and would not require those being questioned to do so under oath. Democrats have rejected that proposal as inadequate, but Conyers told Fielding that he still hoped "that we can resolve with you the committee's need for information from the White House in our investigation."
The Supreme Court first formally recognized the notion of executive privilege in 1974. But in the same ruling, the court said the privilege could be overcome in some circumstances, and it ordered President Richard Nixon to turn over to a special prosecutor secretly recorded audio tapes made at the White House, saying the criminal investigation trumped executive privilege.
The court has never ruled on whether such privilege outweighs a request from Congress performing oversight of the executive branch. In the handful of cases that have arisen since then under several presidents, the White House has reached a compromise with Congress or others.