House Judiciary vs. Bush, Mukasey Over Contempt

In a detailed report filed Monday, the House Judiciary Committee pushed forward contempt citations for Bush administration officials who, under orders from the president, have refused to cooperate in the ongoing Congressional investigation into the firing of nine US attorneys in 2006.

The report was filed with the House Office of Administration, the last procedural step before it can be voted on by the full House. The speaker of the House, Nancy Pelosi, will decide if and when the contempt citation will be voted on. An October 17 article in Roll Call Newspaper cited an unnamed Democratic aide who claimed that the full House would vote on the contempt citations during the month of November.

White House Chief of Staff Joshua Bolton and former counsel to the president, Harriet Miers, have failed to comply with Congressional subpoenas for their cooperation in the US attorney firing investigation. Both officials have acted under instruction from the president, who has invoked blanket claims of executive privilege to try and keep investigations from reaching his office. Congressional investigators have been probing the firings since January but have not been able to answer the core questions of the investigation: Who decided which US attorneys to fire, and what was the reason for their firing?

Former general counsel to the House of Representatives, Charles Tiefer, a University of Baltimore Law professor experienced in contempt and executive privilege cases, called the 858-page report "thoroughly meritorious," in a letter to the Judiciary Committee. "This document, like the reports of the Watergate era, will go down in history as the basis for subsequent and substantial legislative reforms," Teifer told Truthout.

The attorney firing investigation has revealed numerous misdeeds and instances of unethical behavior at the Department of Justice (DOJ) under the leadership of former Attorney General Alberto Gonzales and was a driving force behind his resignation.

The contempt report details the Committee's past findings and attempts to explain why the testimony and documents that were subpoenaed by Congress and withheld by the Bush administration are vital to concluding the investigation. By including extensive testimony from top Department of Justice officials, Congressional investigators document where the information gaps remain and why the testimony and documents from White House officials are the only way to answer the core questions of the investigation.

Previously, battles over executive privilege - the president's right to conduct his affairs in a confidential manner as a separate branch of government - have been resolved through negotiation before reaching the courts. However, in this case, negotiation attempts between Congress and the White House appear to have failed, leaving Congress and the White House at an impasse.

White House counsel Fred Fielding, the main negotiator for the president, has insisted current and former White House staff can meet with Congressional investigators to be interviewed, but only if no recording or transcript of the interview is taken, the staff member is not placed under oath and no further interviews for follow-up questions are allowed. The White House has not budged from this position, which Chairman of the House Judiciary Committee, John Conyers (D-Michigan), called an "unacceptable ... 'take it or leave it' offer" in the report.

In a letter to Fielding, Conyers delivered a final request for cooperation: "As we submit the Committee's contempt report to the full House, I am writing one more time to seek to resolve this issue on a cooperative basis," setting a deadline of November 9 for any White House response.

During Monday's press briefing, White House spokesperson Dana Perino called the contempt report a "diversion," adding that Congress's effort was "taking us backwards to where we were."

This confrontation comes at a particularly sensitive time for the Bush administration's nominee for attorney general. During confirmation hearings, Judge Michael Mukasey expressed a desire to reassert the independence of the Department of Justice, which has been deeply damaged by the appearance of politically motivated prosecutions and firings.

Tiefer sees the Mukasey appointment as a possible solution to the situation. According to Tiefer, as attorney general, Mukasey could appoint a special prosecutor to the case to reassert the Department of Justice's commitment to the rule of law and to counter the perception the Department of Justice has become a political tool of the Bush administration. "The fact that [Mukasey] is a respected former Judge who has presented himself as determined to make the DOJ independent of the politics of this administration, increases the likelihood that he will take action in this matter," Tiefer said.

However, when asked about this issue during his Senate confirmation hearings, Mukasey seemed to indicate that, as attorney general, he would do exactly what the president wants by preventing the Congressional contempt citation from making it to court.

If the contempt citation is brought to a vote and passes the full House, it becomes the responsibility of the Department of Justice to enforce. Mukasey was asked whether he would be willing to enforce Congressional contempt charges against Bush administration officials. "Unless the US attorney can say that it was unreasonable for the person that is proposed to be held in contempt to have relied on a privilege or an order of the president, that person cited for contempt can't be found to have had the state of mind necessary to warrant charging her or him with criminal contempt," Mukasey said, adding, "I hope and pray for a lot of things. One of them is that I don't ever have to make that decision."

Matt Renner is an assistant editor and Washington reporter for Truthout.

© Scoop Media