Patience for Privilege Wearing Thin

House Democrats have filed contempt charges after weeks spent battling claims of executive privilege from Bolton and Miers. Next step? Shackles.

| Thu Jul. 26, 2007 2:00 AM EDT

On Wednesday, the House Judiciary Committee voted 22-17 along party lines to refer to the full chamber a report that recommends holding former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten in statutory contempt of Congress. Citing the Bush administration's assertion of executive privilege, Miers and Bolten have ignored House subpoenas concerning their role in the firing of nine U.S. Attorneys last December.

Laying the groundwork for Wednesday's action has been a long and complicated process for House Democratic leaders. To avoid a possible loss in the courts as well as charges of partisanship, they have spent weeks establishing a pattern of White House obstructionism, built a detailed legal argument against the assertions of executive privilege on this issue, and structured a narrow case based upon the flouting of committee subpoenas. If the contempt charge passes the House, the case will be referred to Jeff Taylor, the U.S. Attorney for Washington, D.C., who was appointed by Bush.

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On Tuesday, Chairman John Conyers (D-MI) circulated a 52-page memo to all members of the House Judiciary Committee. Intended to serve as a compendium of the offenses that warrant the subpoenas, the memo details just about every facet of the scandal: It includes the apparent motives for the attorney firings, the seemingly false statements White House and Justice Department officials have made about the case, and legal arguments against the executive privilege the president has cited as justification for blocking the investigation from moving forward.

It remains unclear how far Congress can proceed in the long term. A July 25 Associated Press article indicated that the House will likely wait until after Congress' August recess to rule on the contempt citations. If they eventually pass the citations, it would be up to House Speaker Nancy Pelosi (D-CA) to refer the case to Taylor. The administration has insisted that Congress cannot force the U.S. Attorney's office to pursue contempt charges, and Taylor, like all U.S. Attorneys, serves at the pleasure of the president.

But Democrats argue that if they don't pursue contempt proceedings against Bolten and Miers, they'll create a perverse set of incentives for future presidents to block Congressional oversight. Republicans responded that a loss in court might actually make that situation worse. "Our failure is not here," said Rep. Chris Cannon (R-UT) at the hearing. "You have the votes here. If we fail in the courts…that's when we make the imperial presidency."

Several Democrats responded that a worse incentive is created when the president believes that Congress will not vigorously attend to its oversight duties. "Some may argue that the stakes in this confrontation are so high we cannot afford the risk that we might lose," said Conyers, "I would say to them that if we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn't even bother to show up, where privilege can be asserted on the thinnest of bases and in the broadest possible manner, then we have already lost."

Other Republicans advanced a less technical argument against the citations. Rep. Ric Keller (R-FL) suggested that the Judiciary Committee accept an offer of an off-the-record, closed-door meeting with White House officials in lieu of escalating the Constitutional crisis.

"There has been no attempt to gather this information through alternative means," Keller said. "For example, the White House has made Harriet Miers available to talk about any communications that she had with DOJ officials, members of Congress or outside sources on an informal basis. They've turned down that interview opportunity. Similarly they're seeking the documents for Josh Bolten. Josh Bolten said, ‘I will provide you with any documents regarding this situation between the White House and DOJ as well as any documents between the White House and Congress or other third parties.'They've turned down that…as well."

Though no Democrat at the hearing specifically questioned his assertions on this point, Keller ignored the fact that the president's offer is contingent upon a host of restrictions, including a refusal to provide the committee with any internal White House correspondence and a refusal to participate at all thereafter. Conyers addressed those restrictions in the 52-page memo.

"On March 20, 2007, White House Counsel made a ‘take it or leave it'proposal, under which the Committee was offered limited availability to some documents and limited access to witnesses, but without any transcripts and under severe limitations as to permissible areas for questioning," the memo read. "The White House also insisted that a condition of its proposal was that the Committee commit in advance not to subsequently pursue any additional White House-related information by any other means, regardless of what initial review of documents and informal discussions should reveal."

If the court does not overrule the executive privilege claims and hold Miers and Bolten in contempt—or if it refuses to hear the citation in the first place—House Democrats will face some difficult choices. One option would be to pursue citations of inherent—as opposed to statutory—contempt of Congress, and try Bolten and Miers before the full House of Representatives. That would require dispatching the House Sergeant-at-Arms to arrest the pair and holding them in jail, an option House aides have suggested Democrats have little appetite for. Failing that, they could begin impeachment proceedings against the president himself, or any Senate-approved appointee involved in the obstruction. Or they could do nothing at all. If that happens, it may well end the congressional inquiry into the U.S. Attorney scandal forever.

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