Harriet Miers and Joshua Bolten in Contempt of Congress

[Luke_Wilbur]

the House Judiciary Committee sent a report and resolution to the House of Representatives finding former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten in statutory contempt of Congress for failing to respond to the Committee's subpoenas in the U.S. Attorney investigation. The report passed by a vote of 22-17.

 

"In order to pursue this investigation, we have done what committees in the Congress have always done – we have sought out documents and testimony, initially on a voluntary basis, and through compulsory process only as a last resort," said Committee Chairman John Conyers, (D-MI). "I began this investigation with a simple question – who put the list of fired US Attorneys together and why. I would think it would be in everyone’s interest to get the facts on the table, so we could reassure the American people that the nation’s laws are being fully and faithfully enforced."

 

Following the vote, Conyers sent a letter to White House Counsel Fred Fielding alerting him of today's actions and urging him to reconsider negotiating terms to resolve the document and testimony issues without further confrontation. "As I explained before the Committee’s vote, I regret that the Committee has had to take this step, and continue to hope that we can resolve with you the Committee’s need for information from the White House in our investigation," he wrote.

 

The full House of Representatives is now required to vote on a contempt resolution before the matter is sent to the District of Columbia's U.S. Attorney for action.

 

Mr. Fred F. Fielding

Counsel to the President

Offfice of the Counsel to the President

1600 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

 

Dear Mr. Fielding:

 

I am enclosing with this letter a copy of the report and resolution approved by the House Judiciary Committee today recommending that the House of Representatives cite Joshua Bolten and Harriet Miers for contempt of Congress for refusing to comply with the subpoenas issued to them on June 13. As I explained before the Committee's vote, I regret that the Committee has had to take this step, and continue to hop that we can resolve with you the Committee's need for information from the White House in our investigation. Indeed, as the Congressional Research Service noted in a recent report, in each of the eight cases in which HOuse Committees alone have found executive branch officials in contempt for refusing to comply with subpoenas based on executive privlege since 1975, there was "full or substantial compliance with the demands of the committee" after the vote.

 

Many possible paths are available to reach an agreement in this matter. Senator Leahy and I priously suggested that we begin by the White House providing copies of documents reflecting communications outside the White House, which was part of your offer in March. With respect to the Department of Justice, we and the Senate Judicaiary Committee have conducted some 12 on-the-record interviews, and have subsequently called only one of those interviewees to testify before a Committee. Just recently, in an attempt to resolve executive branch confidentiality concerns about documents relating to the tragic death of Corporal Patrick Tillman, the White House made available over 400 pages of documents for staff review to assess relevancy and to narrow differences between the White House and the House Committee on Oversight and Government Reform.

 

As we have repeatedly explained, we stand ready to discuss these and all other possible constructive paths to resolve our need for information from the White House in the U.S. Attorneys matter. But make no mistake:

 

If the White House continues to refuse to engage in any discussions beyond repeating its unacceptable "take it or leave it" offer, and if Mr. Bolten and Ms. Miers continue to refuse to comply altogether with our subpoenas, we will have no choice but to enforce those subpoenas by all appropriate legal means. In our system of government, no one is above the law.

 

Sincerly John Conyers, Jr.

Chairman

[Luke_Wilbur]

Resolution Recommending That the House of Representatives Find Harriet Miers and Johua Bolten, Cheif of Staff, White House, In Contempt of Congress For Refussal to Comply With Supoenas Duly Issued by the Committee on the Judiciary

 

 

Mr. Conyers, from the Committee on the Judiciary submitted the following Report together with Additional Views

 

The form of Resolution that the Committee on the JUdiciary would recommend to the House of Representatives for citing former White House Counsel Harriet Miers and White House Chief of Staff Josua Bolton for contempt of Congress pursuant to this Report as follows:

 

Resolved, That pursuant to 2 U.S.C 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on the Judiciary, detailing the refusal of former White House Counsel Harriet Miers to appear before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Ms. Miers be proceeded against in the manner and form provided by law

 

Background and Explanation

 

I. Background of Committee Investigation and Requests for Information from the White House and Harriet Miers

 

A. House Judiciary Committee Hearings

 

Beginning in March 2007, the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law have held a number of hearings on the U.S. Attorney terminations and related issues. These have included:

 

U.S. Attorneys and William Moschella. On March 6, 2007, six of the terminated U.S. Attorneys and William E. Moschella, Principal Associate Deputy Attorney General, U.S. Department of Justice, among others, testified before the Subcommittee. At this hearing (and in private briefings on February 28 and March 5 to Subcommittee members and staff that proceeded it), Mr. Moschella testified, inter alia, as to the Justice Department's then-claimed reasons for firing U.S. Attorneys. The terminated U.S. Attorneys testified inter alia, that they had not been given reasons for their firing and, among other matters, responded to some of the Department's asserted reasons for their firing, and discussed political and other factors that may have been related to their firing.

 

H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary, 110th Congress (2007) (prepared statement of Carol C. Lam et al.) The six former U.S. Attorneys who testified were Ms. Lam, Mr. Iglesias, Mr. Cummins, Mr. McKay, Mr. Bogden and Mr. Charlton.

 

The other witnesses included the following: Representative Darrell Issa (R-CA); former Representative Asa Hutchinson (R-AR); John A. Smietanka, a former United States Attorney for the Western District of Michigan; George Terwilliger, former Deputy Attorney General of the U.S. Department of Justice; T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service; and Atlee W. Wampler, III, President of the National Association of Former United States Attorneys.

 

Ensuring Executive Branch Accountability. On March 29, 2007, the Subcommittee heard testimony about the validity of White House assertions concerning executive privlege in the U.S. Attorney controversy. Beth Nolan, former White House Counsel under President Clinton, indicated that she testified four times before congressional Committees on matters directly related to her White House duties, including three times while she was serving that position.

 

James Comey. On May 3, 2007, former Deputy Attorney General James Comey testified before the Subcommittee.

 

Alberto Gonzales. On May 10, 2007, Attorney General Gonzales appeared before the full Judiciary Committee for an oversight hearing that focused on the U.S. Attorneys controversy.

 

Monica Goodling. After a grant of limited use immunity, Monica Goodling, former Senior Counsel to Attorney General Alberto Gonzales and the Department's White House Liason, appeared before the full Committee on May 23, 2007.

 

Paul McNulty. On June 21, 2007, Deputy Attorney General Paul McNulty testified before the Subcommittee.

 

Harriet Miers. Former White House Counsel Harriet Miers refused to comply with a subpoena requiring her appearance before the Subcommittee on July 12, 2007. Ms. Miers not only failed to provide testimony or documents, but she also failed to appear for the hearing. Subcommittee Chair Sanchez proceeded to overrule Ms. Miers' claims of immunity and privlege and her rulling was sustained by Subcommittee members in a recorded vote of 7 to 5.

 

B. Justice Department Documents and Staff Interviews

 

On March 8 2007, Chairman Conyers and Subcomittee Chair Sanchez wrote to the Attorney General requesting documents and interviews with Department of Justice personnel concerning the U.S. Attorney matter. Pursuant to that request, the Committee has received and reviewed thousands of pages of Justice Department documents. Many documents were initially produced in redacted form, with Committee staff being granted a limited right to review the unredacted documents on Department premises. Additional Committee efforts to obtain additional documents voluntarily, included letters of March 22, March 28. and April 2, 2007. were not successful. On April 10, 2007, the Committee issued a subpeona to the Department for full production of all relevant documents in unredacted form. Negotiations to secure full compliance are continuing. A large number of additional documents have produced as a result, and Committee staff expect a limited number of additional documents to be produced by the Department.

 

In addition to the initial Committee requests, Chairman Conyers, Subcommittee Chair Sanchez, Representative Zoe Lofgren, and Representative Keith Ellison have sent further requests for information pertinent to the U.S. Attorney controversies in Missouri and Minnesota. On July 17, 2007, Chairman Conyers, Subcommittee Chair Sanchez, Representative Artur Davis, and Representative Tammy Baldwin requested documents and information about several prominent prosecutions and convictions of Democratic officials or operatives in various parts of the country, in light of extensive allegations of selective, politically influenced prosecutions. In addition, Majority and Minority staff from both the House and Senate Judiciary Committees have so far jointly conducted on-the-record interviews of twelve current and former Department of Justice officials.

[Guest John Conyers, Jr.]

I wanted to take the opportunity to update you on the status of the contempt of Congress resolution in the House of Representatives.

 

As you may know, the Judiciary Committee passed a resolution before the August recess holding the White House and Harriet Miers in contempt of Congress for their failure to provide documents and appear before the committee as legally required by subpoena.

 

The information we have received to date from the Justice Department from our U.S. Attorneys investigation indicates the White House played a central role in the firing of the nine federal prosecutors. Yet, the White House has stonewalled and consistently refused to cooperate with inquiries into this matter.

 

At the heart of our investigation is the evidence uncovered suggesting that the nine U.S. Attorneys were fired for politically-motivated reasons, while others may have been retained because they were pursuing partisan investigations.

 

We have also discovered that job candidates' political contributions and affiliations were considered in hiring decisions for nonpartisan positions in the Department of Justice. Our job has been made more difficult by apparent misleading testimony from the Attorney General and other Department of Justice officials.

 

This politicization of our judicial system cannot be tolerated. Our citizens have a right to expect that federal prosecutions will be conducted in a fair and nonpartisan manner.

 

There are many steps we can take in this confrontation with the White House. Some are more extreme than others. What we must first do is get the facts that show who made these decisions in the White House. Only once we have this evidence can we adequately pursue justice.

 

What is now required is for the House to pass these contempt of Congress citations and pursue legal action against the White House and Harriet Miers for their failure to meet the requirements of the subpoenas. Hopefully this contempt of Congress resolution will soon have a vote on the floor of the House. I am not prepared to allow this administration to operate above the law.

[Guest human_*]

If your side EVER practiced what you preached "democrats"?? Even I would support such actions.

 

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This politicization of our judicial system cannot be tolerated. Our citizens have a right to expect that federal prosecutions will be conducted in a fair and nonpartisan manner.

[Luke_Wilbur]

If your side EVER practiced what you preached "democrats"?? Even I would support such actions.

 

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I have to agree with you Human.

 

As you can see I asked the Democratic Presidential Candidates this question.

 

http://action.richardsonforpresident.com/p.../lukewilbur/Bgr

 

http://chrisdodd.com/issues/constitution#comment-36892

 

http://my.barackobama.com/page/community/blog/lukewilbur

 

http://connect.hillaryclinton.com/forum.js...rumID=400006445

 

I still ask John Edwards.

 

None of the presidential candidates want to answer how they interpret this power problem.

[Guest Jonathan Godfrey]

“Although the legislative power of contempt is not expressly provided for in the Constitution and exists as an implied power, as early as 1821 the Supreme Court recognized that without this power the legislative branch would be ‘exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.’”

 

– The Politics of Executive Privilege, 2004.

 

“…Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry -- with enforcing process -- was regarded and employed as a necessary and appropriate attribute of the power to legislate -- indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”

 

– McGrain v. Daugherty, 273 U.S. 135 (1927)

 

PRECEDENT

 

In 1982, the House voted 259-105 – 55 Republicans joined 204 Democrats – to support the contempt citation against EPA Administrator Anne Gorsuch for refusing to turn over documents on the EPA’s enforcement of the Superfund program to the House Public Works Committee.

 

 

In 1983, the House voted unanimously 413-0 –to support the contempt citation against EPA Administrator Rita Lavelle for refusing to testify before a congressional committee.

 

 

There is ample precedent for White House cooperation with such congressional inquiries. For example, CRS has documented at least 74 instances since World War II where even sitting White House advisers, including White House counsel, have testified before Congress, including 17 between 1996 and 2001.

 

 

 

AMERICAN PEOPLE SUPPORT HOLDING WHITE HOUSE ACCOUNTABLE

 

 

 

 

The majority of Americans – 74 percent – believe the White House should testify under oath on this matter. [Los Angeles Times/Bloomberg, 4/2007]

 

 

68 percent of those surveyed believe the White House should “drop the claim of executive privilege and answer all questions.” [uSA Today, 3/2007]

 

 

68 percent of Americans support Congress issuing subpoenas to force White House officials to testify. [uSA Today, 3/2007]

 

 

“Democratic pollster Alan Secrest of Cooper & Secrest, who works for several Democratic freshmen, said he doesn’t see any political downside to pursuing the contempt vote at this time.” [Roll Call, 12/3/07]

 

 

 

FROM THE EXPERTS

 

Harlan J. Protass, Professor at Benjamin N. Cardozo School of Law

“The subpoena is the great democratizer of the American judicial system. Everyone must respond in some way to a lawfully issued subpoena. Everyone, that is, apparently, except for those whom the White House unilaterally declares to be exempt from that legal duty… When it comes to subpoenas, former White House officials should be treated like everyone else… If it would be appropriate to hold in contempt a nameless recipient of a congressional subpoena who refused to appear for testimony, then such a finding is also appropriate for Miers… No one - including Harriet Miers - is above the law and can simply disregard a subpoena. And no administration should encourage or direct that type of conduct.” [Newsday, July 19, 2007]

 

Peter Shane, Professor at Ohio State University

“There is no absolute right to presidential privilege... What’s at stake here is a qualified privilege… Given the president’s offer to let (aides) speak to Congress about these matters, essentially he has acknowledged that the information at stake here is not of sufficient urgency that the disclosure of it compromises his ability to be president… In that situation, if we get down a legal question of executive privilege, it’s not that strong.’’ [Chicago Tribune, July 25, 2007]

 

Stephen Gillers, Professor at New York University

“The privilege does not entitle you to refuse to appear. The privilege entitles you to refuse to answer questions when you appear if those questions call for privileged information…No one can claim the privilege entitles you to ignore the body that subpoenas you.” [Los Angeles Times, July 12, 2007]

 

Erwin Chemerinsky, Professor at Duke University

“As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won't compromise, there is no choice but for the House of Representatives to vote for contempt of Congress charges.” [baltimore Sun, November 11, 2007]

 

 

IN THE NEWS

 

The New York Times Editorial

“The Work Remaining,” December 26, 2007

“Congress must hear from all of the major participants. The House Judiciary Committee has voted to hold Joshua Bolten, the White House chief of staff, and Ms. Miers in contempt for ignoring Congressional subpoenas. The Senate Judiciary Committee has voted to do the same for Mr. Bolten and Mr. Rove. The full House and Senate should affirm those votes and refer the witnesses for prosecution if they still will not cooperate… The integrity of the Justice Department is precious. The fair application of the law is the cornerstone of American justice and American democracy. A halfway resolution of this scandal is not enough. It needs to be investigated vigorously and completely.”

 

Albuquerque Tribune (New Mexico) Editorial

“White House can’t ignore the Constitution,” July 30, 2007

“The United States is in constitutional crisis. It's time for Congress to grow a backbone and start acting like the people's representative and constitutional check on unbridled presidential power… Whether there is broad bipartisan support, neither chamber now should flinch from pursuing contempt or perjury charges, by simple majority vote through whatever process looks to be the most promising in bringing to justice those who would obstruct it… It is instructive that the Founding Fathers saw Congress as an equal to the executive and judicial branches. They designed the bicameral legislature to be far closer and responsive to the people and saw it as a vital balance to the sweeping, but very limited, powers vested in the president. If Congress does not stand on its own feet now, it will forever be little more than a presidential rubber stamp. Senators and representatives must have faith that when they stand, Americans will stand with them.”

 

Pittsburgh Post-Gazette (Pennsylvania) Editorial

“The People’s Rights,” July 28, 2007

“The attempts of the Congress to obtain information from the White House are worthy of respect and, if subpoenas or stronger measures are necessary to achieve testimony or documents, they should be used and enforced. A Congress led after the 2006 elections by a Democratic majority has worked hard since then to try to restore the normal constitutional relationship between the legislative and executive branches of the federal government… In any case, the Congress and the American people have a right to know what federal officials have done and are doing in their name. Telling them it is none of their business is unacceptable. The Congress will need to pursue this problem to the end.”

 

The Baltimore Sun Editorial

"A Terrible Precedent,” July 21, 2007

“Congress must protect its prerogatives as an equal branch of government… This stonewalling is symptomatic of an administration that has much to hide. After six years in which the Republican-run Congress mostly ignored its oversight role, Democrats are now poking into dark corners and exposing shameful secrets… Too much power is dangerous to a democracy, and this administration has pushed the envelope on about every front imaginable - from secret spying on its own citizens to launching a war on false pretexts. Congress cannot allow Mr. Bush's regal pretensions to become the model for a future chief executive.”

 

The Philadelphia Inquirer Editorial

“White House Immunity; None of your business,” July 14, 2007

“In sum, this White House is making breathtaking claims about its immunity from oversight… Only Congress and the courts have the authority to restrain this administration's grasping after an imperial presidency. It's about finding the right balance between demanding accountability in the public interest, and tying a president's hands in conducting the nation's affairs… What shouldn't be forgotten as Congress, the White House and the courts proceed along a potential collision course is why the Constitution's checks and balances are important. That is, oversight and accountability help a president to do his job.”

[Guest Melanie Roussell]

On Febuary 14, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) made the following remarks on the House floor in support of H.R. 979 and H.R. 980 - statutory contempt and civil litigating authority resolutions for former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten:

 

The resolutions we are considering today are not steps that I as chairman take easily or lightly, but they are necessary to protect our constitutional prerogatives as a co-equal branch of government.

 

I believe the investigation we have been engaged in over the last several months is an important one. It is not about whether U.S. attorneys serve at the pleasure of the president – they clearly do.

 

But it does concern whether the American people can be assured that their laws are being fairly and impartially enforced.

 

In order to pursue this investigation, we have done what committees in the Congress have always done – we have sought out documents and testimony, initially on a voluntary basis, and through compulsory process only as a last resort. The investigation did not begin with the White House, but has ended up there only after the review of thousands of pages of documents and obtaining the testimony and interviews of 20 current and former Department of Justice employees. We have been open at all times to reasonable compromise, and have been fully respectful and cognizant of the prerogatives of the executive branch.

 

As a matter of fact, I have written to the White House Counsel on no less than nine separate occasions seeking a compromise on this matter.

 

What I am not open to is accepting a “take it or leave it offer” which would not allow us access to the information we need, would not even provide for a transcript, and would prevent us from seeking any additional information in the future. That is the only proposal we have ever received from White House Counsel, and I would hope all of the Members would as an institutional matter recognize the problems inherent in such an approach.

 

This is not a confrontation we have sought, and is one we are still hoping to avoid. However, I believe on the merits our case is quite strong. Unlike other disputes involving executive privilege, the president has never personally asserted privilege, the committee has never been given a privilege log, and there is no indication the president was ever personally involved in the termination decisions.

 

Some may argue that the stakes in this confrontation are so high we cannot afford the risk that we might lose. 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. I would also say that if you really are concerned about Congress’ rights, you should contact the White House Counsel’s office and encourage them to work with us to find a meaningful compromise.

 

The matter before us today is not a partisan matter; it is an institutional matter. This is why our former colleague from the other side of the aisle Mickey Edwards and former Reagan DOJ official Bruce Fein have written that today’s vote is needed to defend Congress “as a separate, independent, and completely equal branch of government.” We should heed their words and report these resolutions out today.