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July 25, 2007

Judiciary Committee Charges Bolten and Miers with Contempt of Congress

White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers just found out that Democrats, now in the the Congressional majority, have made good on their vow to hold uncooperative White House sycophants accountable for things like lying and obstructing the oversight authority of Congress. Bolten refused to hand over emails central to the investigation over the fired U.S. attorneys and Miers, following Bush's orders, refused to even show up for testimony before Congress after receiving a subpoena two weeks ago. (If she wanted to plead the 5th amendment, she still needed to show up to do so.) Now the House Judicary Committee has charged them with Contempt of Congress, and if the White House still thinks it can scare either the House or Senate committees into submission, they've got another thing coming:

Last week, White House officials vowed that if the full House holds the two officials in contempt, they would block lawmakers' ability to bring the charges before a federal judge by preventing any U.S. attorney from pursuing such a case. The administration cited a 1984 Justice Department legal opinion, never adjudicated in the courts, that said that a federal prosecutor cannot be compelled to override a president's privilege claim.

In the memorandum, Democrats provide the first legal justification for countering the White House's view, saying that the 1984 opinion "does not apply here". For one thing, the Democrats contend, Bush has not  invoked the executive privilege properly because he has not furnished a signed statement or "privilege logs" specifying the documents being withheld. In addition, the memo says, "there is not the slightest indication" the 1984 opinion would apply to a former executive branch official, such as Miers.

There is no doubt that Bush will force this as far as he possibly can but it seems to me his current legal counsel, Fred Fielding, hasn't learned much since his days in the Nixon White House. Perjury and obstruction are huge matters, a lesson that Abu Gonzales is learning since his utterly dishonest performance before the Senate Judiciary Committee yesterday. As Republican Arlen Specter said at that hearing, perjury before Congress is an "actionable" item -- meaning, indictment and conviction are called for. It's my belief Bush's band of crooks can only lie to Congress just so many times before committee chairs bring out the hook (as Conyers and Sanchez have done today) and until administration officials all start turning on each other, something we've already witnessed between McNulty, Gonzales, Comey and other current and former denizens of the Justice Department.

Not being a lawyer, I can only rely on friends who are lawyers and on the information provided by documents from the Congressional Research Service. As I said in a previous post, having read through those documents, the president's claims of deliberative privilege look very flimsy to me. If he wasn't involved in the deliberations over the firing of the prosecutors, he can't claim the deliberative privilege.

Some bloggers have been wondering why Congress didn't simply charge Bolten and Miers with "inherent contempt" in order to circumvent the need for a court fight with Bush. The CRS explains "inherent contempt":

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

There is one obvious advantage to this tactic, and that is that administration officials would be held right away, though the case itself would take a fair amount of time. It would also show that Congress is not willing to tolerate anymore legal obfuscations by the administration. Opposition to this administration's corruptions of the Constitution are imperative. The drawback, however, is that officials held in "inherent contempt" could only be held in jail until the current congress adjourns in January 2009. Also, it would give the Republicans and their benefactors in the MSM more fodder for charges that Democrats are relying on spectacle. My emotions tell me they should have charged the two with "inherent contempt". My reason tells me that the route they chose may be the better one after all. Conyers and Sanchez don't make major decisions like this without consulting the 35 lawyers who advise that committee. Since the 1984 law was never resolved in court, well, now may be the time. It's true that Bush has packed the courts with conservative-minded judges, some of whom may be wholly supportive of unitary-executive arguments. But even the SCOTUS has handed the administration some setbacks with regard to the rights of terror suspects. We can't know the outcome until the challenge is put before the courts. Why wait? The judges that Bush appointed will still be around for the next president, the president after that and so on. Either way, both kinds of contempt charges will take time to run their course.

Conyers, who's come under fire recently for saying now is not the time to push for impeachment, may have something else up his sleeve. Smart, successful lawyers lay the groundwork, they don't go off half-cocked like the crime boss lawyers in the White House. If it turns out that Congress and the American people can't rely on the third branch of government to uphold it's duty under the Constitution -- the duty to adjudicate, the duty to exact judgements according to the rule of law, no matter who resides in the White House -- then perhaps Conyers and Sanchez will find that the political remedy afforded by the Constitution is the only remaining option, and must be intitiated, convenient or not. 

Posted by shoephone on July 25, 2007 at 12:26 PM in National and International Politics | Permalink


Great post Shoey. The CRS reports are always very good.

The zinger I've always felt is "If he wasn't involved in the deliberations over the firing of the prosecutors, he can't claim the deliberative privilege."

And if he WAS involved in those deliberations, then he knowingly and "deliberately" lied to the American public when he and his spokespersons issued statements that he was not involved at all and that nothing should be laid at his door, etc. If he deliberately lied about his participation in the process, then I think you overcome the deference normally given to a President to not compel such testimony absent a compelling need - bc where the President is openly and deliberately lying to the American public there is a compelling need in and of itself - without the further ripple that such a lie is indicative of something to hide in the nature of the obstruction allegations that are surfacing.

Right now, with no impeachment, this country is not a nation of laws, bc the chief law enforcement officers and departments have declared openly that they make their own law and have no duty to follow the law - only the man, the President.

You quite clearly cannot have a nation of laws without a DOJ that adheres to and enforces the law. If this nation is not one of laws - who needs a legislative branch?

Posted by: Mary | Jul 25, 2007 2:44:35 PM

Mary - I'm right there with you on the excuses for deliberative privilege, especially since we both assume he was involved in the firings and gee, what's that they said back in the day about a president lying to Congress?

Question: what do you think about the House Dems bypassing the prospect of using inherent contempt and going for contempt through the judiciary instead? My thinking is that inherent contempt, while gratifying in the short term, would not resolve the question of the 1984 legal opinion. Secondly, it wouldn't force Bush to explain in legal terms (which he has not done) why and how he is claiming privilege. Even if the D.C. circuit follows Bush's order not to try the case (which, I believe, would actually be grounds for impeaching the judge) this tactic still means he has to pony up on his justification for claiming privilege for himself in the matter.

Your thoughts?

Posted by: shoephone | Jul 25, 2007 6:41:44 PM

While the judiciary could be a problem, Sen. Specter's remark yesterday about reviewing Justices Alito and Robert's testimony before Congress got someone's mind working:


I hadn't realized this, but apparently, he was referring to the possibility of another remedy. Of course, this is "Snarlin' Arlen" we're talking about here, but it is an intriging thought if enough Republicans go along with it.

Posted by: Cujo359 | Jul 26, 2007 12:07:14 PM

Cujo - I, personally, can't imagine Specter going that far. He did sound very angry at Gonzales yesterday, but then turned around today to criticize the Judiciary Dems for demanding a special prosecutor. The upside is that he reminded Gonzales (and everyone else) that perjury is an "actionable" offense, especially having done so in such a public forum. That will only help the Dems make the case. The downside is that he bent back on his heels today and acted like it was all some sort of misunderstanding. He is acting as someone who is all talk and no action -- which is very typical of him. So when he talks about poring over Alito's and Roberts' nomination testimony, I take it with a grain of salt and adopt a deep wait-and-see attitude.

If I were Gonzales, I'd resign today and hope that everybody forgot my name by this time next year. If he hangs on too much longer he's going to wish he never met the likes of Sheldon Whitehouse, who I think is the shrewdist ex-prosecutor on the committee. And he is out for blood.

Posted by: shoephone | Jul 26, 2007 7:02:41 PM

That's what I meant by "Snarlin Arlen" - no bite. Still, it's an interesting thought, I think. Hopefully someone with more gravitas will take the idea and run with it.

Posted by: Cujo359 | Jul 27, 2007 9:53:02 AM

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