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Pelosi Makes Criminal Referral for Contempt Citations of White House Officials
Two weeks ago, the House passed a contempt resolution against White House chief of staff Josh Bolten and former counsel Harriet Miers. The two refused to comply with subpoenas issued by the House Judiciary Committee as part of the investigation of the U.S. attorney firings.
Today, after House lawyers dotted their i's and crossed their t's, House Speaker Nancy Pelosi (D-CA) finally followed up by referring the contempt resolution to the U.S. attorney for D.C.
What will happen next is not much of a mystery. Attorney General Michael Mukasey has already said that the Justice Department would not act on such a referral and convene a grand jury, as required by federal law. That's because Miers and Bolten didn't comply with the subpoenas because the President said they couldn't -- it would violate executive privilege.
In a letter to Mukasey, Pelosi anticipated that answer, but argued that "there is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so."
She concluded: "I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim."
If Mukasey, through D.C.'s U.S. attorney, rebuffs the referral as expected, the House has a backup plan. The House also passed a resolution that would allow the House Judiciary Committee to pursue a lawsuit against the White House over the subpoena. If a judge agreed to hear the case, it might lead to a decision as to whether the President's sweeping invocation of privilege is Constitutional.





Look out!!! It's a Strongly Worded Letter! Oh humanity! I hope he survives this vicious tongue lashing!
February 28, 2008 4:55 PM | Reply | Permalink
Amen. My eyes are burning with the calamity expressed by our dear proactive Speaker.
February 28, 2008 5:04 PM | Reply | Permalink
It seems like there should be a mechanism in place to hold the DOJ in contempt of Congress. Who would prosecute it though... that's a different matter.
February 28, 2008 5:04 PM | Reply | Permalink
Well, that's exactly the nature of a constitutional crisis. This is an aspect of the separation-of-powers doctrine which, frankly, the very clever guys that wrote the Constitution just didn't think through all that thoroughly. The basic problem was summed up nicely by my Constitutional Law professor: "Ok, Congress, you go ahead and send the sergeant-at-arms over here to enforce your subpoena. We'll have the 97th Airborne here to meet him. Good luck with that." When it comes down to a confrontation between the Executive and Legislative branches, the reality is that the Executive wins, because the Legislative doesn't really have any enforcement powers at all; the Executive pretty much owns those.
What Pelosi is proposing, in essence, is an appeal to that other branch, the Judicial one. It has even less enforcement powers than the other two; as far as I know, the Supreme Court doesn't even have bailiffs. But for some odd reason, it still commands respect; it says "jump" and the other two branches say "how high?" That's why everybody meekly submitted to the really appalling Bush v. Gore decision, for example. When the Executive Branch starts defying the Judicial Branch, we'll know the system has broken down completely. Right now, both Executive and Legislative seem to be ready to accept the Judicials as the official referee.
March 1, 2008 12:04 PM | Reply | Permalink
I wonder if a judge would hear the case if DOJ refuses and the Judiciary Committee prosecutes. Is a resolution enough to create jurisdiction?
February 28, 2008 5:13 PM | Reply | Permalink
Who would prosecute it? House managers on the floor of the US Senate. We already have that mechanism in place: impeachment of the US AG.
February 28, 2008 5:15 PM | Reply | Permalink
Is there any chance at all that any of these cases make it through to fruition before Bush's term ends, or that any of these matters may be pursued even after this admin leaves office? My hunch is no.
And where to find out more about the lawsuit/backup plan for when the DC US Atty refuses to pursue their contempt resolution?
February 28, 2008 5:18 PM | Reply | Permalink
Dear Madam Speaker ,
Please support Committee Chairman Conyers in his active pursuit of the inherent contempt of Congress resolution for both Meiers & Bolten - please prove us wrong that you really aren't a fleckless & impotent party leader...
Ask Mukasey " Do you feel lucky punk ... well do ya -punk ?!!"
February 28, 2008 6:10 PM | Reply | Permalink
Has Congress ever held anyone else inherently in contempt (not a rhetorical question)? Or would that--with deepest respect for Chairman Conyers--be a novel maneuver? While it's clear Mukasey's not going to do a thing about the contempt resolution Pelosi referred to him today, is there a reason the Dems shouldn't at least let that play out so they can say they tried to stick to the standard script before getting creative?
February 28, 2008 6:34 PM | Reply | Permalink
Yes, the Postmaster General in 1934. From Wikipedia:
"After a one-week trial on the Senate floor (presided over by the Vice-President of the United States, acting as Senate President), William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics who had allowed clients to rip up subpoenaed documents, was found guilty and sentenced to 10 days imprisonment.
MacCracken filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken."
February 28, 2008 8:30 PM | Reply | Permalink
You'll notice there is no specific "deadline" Pelosi included in the letter, either for the DOJ AG to respond, or for the grand jury to be empaneled, or for the US Atty to "think about" the letter.
The issue has changed from whether Congress will or will not be a separate branch of government with power to enforce a subpoena; to whether the AG will or will not respond in the absence of any legal requirement to respond by a specific data.
Each time he's asked, he could answer, "We're still reviewing it." And the House response: "Oh, OK. Take your time. We're not going to impeach you."
Remove Pelosi as Speaker, and let's get some real leadership in the Speakership position to start real action.
February 28, 2008 6:13 PM | Reply | Permalink
Does anyone else get the feeling the Democrats are trying to run the clock to avoid doing anything "controversial"?
February 28, 2008 6:13 PM | Reply | Permalink
Although I'd prefer to see this dealt with now, I would not mind continued action during an election year that reminds the public that the Republicans consider themselves above the law.
February 28, 2008 7:04 PM | Reply | Permalink
Remember when a contempt citation was a "big Deal"?? How many early antiwar and leftists had to spend thousands, and years of their lives , fighting these? I just saw a special on Pete Seeger and it reminded me of what the ramification of these meant.
I guess the difference here is, the accused REALLY DO have contempt for anything not neocon.
So they get a pass based on sincerity I guess.
February 28, 2008 6:18 PM | Reply | Permalink
I guess she has to go through the motions, but it would have been nice if she'd given a deadline for action and warned that the Congressional power of inherent contempt would be exercised after the deadline.
February 28, 2008 6:40 PM | Reply | Permalink
There *is* a deadline set by Pelosi's letter: one week. No notice within a week and they file a civil suit.
February 28, 2008 6:42 PM | Reply | Permalink
No, that's not what the letter says. It says the opposite: They would like to know within a week so that they can proceed with a civil suit.
If the DOJ AG doesn't respond, but is still "deciding" things, the Speaker hasn't threatened any action.
What happens if the DOJ refuses to respond? The letter doesn't say, "Respond in a week, or we will file suit," but the opposite: "Please tell us you're not going to respond . . ."
February 28, 2008 6:57 PM | Reply | Permalink
This is not a deadline, but a request:
- What happens if the DOJ AG doesn't respond?
- What happens if its never?
A more credible letter would have included the following deadline, "Unless you agree to act within seven [7] days, we will start impeachment proceedings against you."
There is no deadline, nor are there any clear consequences if the DOJ AG refusese to act. A co-equal branch of government doesn't request anything. It assert power: "Respond, or we will assert power to punish you."
February 28, 2008 6:54 PM | Reply | Permalink
Speaker Pelosi is further cementimg her tenure as a failure. She certainly isn't helping those female politicians coming behind her. The Democrats were given the majority in both Houses because they were charged with ending the war in Iraq. How's that going? The administration has done everything ignoring them but spit in their faces. This "crying wolf" by sending "strongly worded letters" Is causing laughter just as the people in the fairy tale. Because it is. They were elected to take CHARGE. A situation they have no clue to initiate. I doubt if Leahy has enough money left to buy paper to send "strongly worded letters." I hope the electorate is as charged up this time to change both houses to Democratic control and NEW members and leadership. Pelosi lost me when impeachment was taken "off the table." Her duty, and the rest of their duty, is to uphold the Constitution. And they are all derelict. The public can't impeach but we can change the players. I hope it happens.
February 28, 2008 7:02 PM | Reply | Permalink
Yeah, I was just thinking how disappointing she's been particularly in light of all I've heard about how different things would be if women were in charge. To be clear, I don't hold her ineptitude against her.
Just goes to show that it isn't what's between your legs that counts.
February 28, 2008 7:16 PM | Reply | Permalink
Doh, I meant to say that I don't hold her ineptitude against women.
February 28, 2008 10:41 PM | Reply | Permalink
Congress can order the sergeant at arms to arrest for contempt a witness that disregards a subpoena. It is time for that to happen.
http://blog.nj.com/njv_frank_askin/2007/07/time_for_congress_to_reopen_it.html
February 28, 2008 7:03 PM | Reply | Permalink
Hear hear!
Strongly worded letter my aching ass. Pelosi doesn't even seem like she's read the Constitution that she took an oath to uphold.
February 28, 2008 7:18 PM | Reply | Permalink
That's a great article. Realistically, I think that the House needs to get the judicial branch involved to give a stronger sense of legitimacy. Almost everything a Dem House (or GOP House for that matter) does is seen as partisan politics.
February 28, 2008 7:41 PM | Reply | Permalink
This could be the road to getting the judicial branch involved, i.e., after Mukasey blows it off, the Judiciary Committee moves ahead with trying to prosecute the contempt citation itself. The courts are going to get involved pretty soon in that scenario.
February 28, 2008 7:56 PM | Reply | Permalink
I would guess that "respectfully request" is D.C. speak for a deadline. But you never know with this Dem leadership.
The Dems are so scared to rock the boat. Haven't they noticed that they didn't pass the FISA bill and they're getting away with it? I don't hear anyone but partisan right wingers making any kind of hubbub about it. It's like they keep expecting the public to smack them, when the public is actually with them.
February 28, 2008 7:47 PM | Reply | Permalink
Please,Nancy,please don`t keep the contempt citations on the table .Please take them off and store them next to impeachment and the lost emails."Please,Bro` don`t throw me in the briar patch...."
February 28, 2008 7:51 PM | Reply | Permalink
"She concluded: "I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim.""
Is this the same Pelosi who has been around this whole time? I find it difficult to believe that, after all these months, all these hearings, all these banters back and forth...Pelosi is still not able to see that the rule of law has been missing ever since SHE took impeachment off the table.
Of COURSE it is gone!!! SHE and the OTHER crooks up there have ensured it was no longer a hindrance to Bush and the other crooks!!!
Why are "We the People" even CONSIDERING reelecting people who have absolutely NO regard for the history, goals, and ideals of this once admirable nation?
February 28, 2008 8:09 PM | Reply | Permalink
Ugh! My only thought is that Nancy Pelosi is actually an undercover Republican, sent deep into enemy territory to raise doubt and suspicion about the intelligence of the Democratic Congress and give the Republicans the smallest glimmer of hope in November, at least in Congress if not the White House.
February 28, 2008 10:21 PM | Reply | Permalink
An impeachment proceeding would help a lot. However, it would also just create a problem since the Republicans would never support it. Just strip out DoJ appropriations for next year and refuse to pass any budget with DoJ pay provisions until subpoenas are enforced.
February 28, 2008 11:25 PM | Reply | Permalink
I suspect she's doing what she thinks she needs to do to keep the Dems united - including, unfortunately for us, the Blue Dogs.
February 29, 2008 1:21 AM | Reply | Permalink
Is Move-On or anyone else going after the Blue Dogs?
Or how bout the other Dems who lacked the courage to follow the 2006 mandate? We gave them complete cover and they did not act.
Let's unite and kick their butts out so President Clinton or Obama can get things done!
Including a real liberal to the Supreme Court-not just a moderate democrat. Imagine that!! Imagine another Brennen or Brandeis!
February 29, 2008 6:07 AM | Reply | Permalink
some may be wondering, "How long might a delay be; and what could we expect after this delay?"
The latter question is easiest: Another strongly worded letter. The former is the interesting question.
To answer that, Consider this:
Did you catch that: Three months passed, and then the Congress wrote another letter, requesting more written answers. The issue would change from the original contempt citation, to whether or not the AG had or hadn't provided a written response. You can thank the worthless DNC leadership for their failure to challenge the worthless RNC leadership.
In the case of the contempt citation, even if the DOJ AG does nothing, we're looking at another series of delays, then a rude awakening in the Speaker's office, "Wow, it's been three months, and they still haven't responded, let's send another letter."
The US Congress doesn't show it is interested in fully performing as an independent branch of government. Strikingly, the majority party, by definition of its being the majority, has the [wait for it] majority of support of Americans. It appears they're looking for the impossible: Support from the RNC to impose power. That will never happen. The DNC needs to stop waiting for what it already has: Majority support.
The public needs to openly discuss brining charges of malfeasance against the speaker, and broaden the indictments to target the DNC and RNC leadership for alleged oath of office violations, 5 USC 3331. This can be done at the State level. Your State AG's need to hear from you: They have the power to independently prosecute against Members of Congress indictments related to their failures to ensure the states' right to a constitutional enforcement mechanism are fully enforced. State AGs can also prosecute a istting President or Vice President.
February 29, 2008 2:23 PM | Reply | Permalink
Even Nixon's henchmen had to testify--why not Miers and Bolton? Mukasey is starting to make me long for the days of Alberto Gonzales--we knew what we had with Gonzo, but Mukasey gives new meaning to the word "evil." Are we sure he is not Cheney's mentor?
February 29, 2008 7:57 PM | Reply | Permalink
“I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”
“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”
“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”
I’ve talked to three people present for the meeting that day and they all confirm that the President of the United States called the Constitution “a goddamned piece of paper.”
"Fool me once, shame on — shame on you. Fool me — you can't get fooled again."
"Sure a dictatorship would be easier"
Mukasey is exactly what Bush wanted.
February 29, 2008 8:32 PM | Reply | Permalink
I wrote Senator Charles Schumer (D-NY), Mukasey's biggest advocate during the confirmation hearings, and he wrote me back with this letter I posted on Daily Kos.
Bear in mind I was dissenting because of his refusal to declare waterboarding torture. See the Senator's full response:
http://www.dailykos.com/storyonly/2008/2/29/203921/059/192/466605
Sorry I know it's shameless self-promotion but his letter is quite ironic considering today's news.
February 29, 2008 9:48 PM | Reply | Permalink
Nancy, get impeachment back on the table!
February 29, 2008 9:48 PM | Reply | Permalink
My kingdom for a gotcha journalist to ambush Senators Schumer and Feinstein on the subject of the AG's recent performance. Here is one instance where I'd love to see that frothing pit bull Russert unmuzzled, unrelenting and in full attack mode, hounding Chuck and DiFi with choice quotes from their Op Ed pieces in support of Mukasey's confirmation -- the ones where they expressed confidence in his integrity and his ability to remain nonpartisan.
Well, it's a nice fantasy, anyhow.
February 29, 2008 10:14 PM | Reply | Permalink
This is the Rubicon of our Republic.
If Congress has no subpoena power, it is worthless. There is no legislative branch.
I recall Ralph Nader saying in 2000 that there wasn't a dimes worth of difference between the two parties.
Well, we lost our democracy. This country's increasingly becoming a steaming piece of crap.
February 29, 2008 11:57 PM | Reply | Permalink
If Bush told them not to testify, can he be charged with Obstruction of Justice? Interfering with an ongoing investigation?.
http://en.wikipedia.org/wiki/Grand_jury
Is the President invoking his right to the 5th Amendment.
March 1, 2008 12:52 AM | Reply | Permalink
Yes, they can. However, it requires the commitment of the next president (Obama or Clinton) to puruse said prosecutions and to wave all claim to executive privilege vis-a-vis the papers and relevant testimony of the GWB administration. I am still waiting to hear either canditate commit to pursuing the criminal acts of the previous administration. The question becomes which candidate is willing to permanently destroy the GOP. I seriously doubt whether Clinto or Obama have the cajones to do this because to do so would open them to the same outside scrutiny. Further, O & C need to be asked: Will you turn GWB & Dick Cheney over to the International Criminal Court for prosecution?
March 1, 2008 12:21 PM | Reply | Permalink
What's the point of using all the evidence AFTER the election???
There's PLENTY of evidence to make a case for impeachment. Even if it doesn't get enough Republican votes to pass, a simple examination of the vote tally would show which members of Congress are working for the country and which of them are only working for themselves.
Just as we now blame Schumer and Feinstein for giving us Mukasey, we'll blame them for protecting crooks like Bush and Cheney so they can be voted out BEFORE the election.
March 3, 2008 4:05 PM | Reply | Permalink
Some of the recent postings suggest that the Democratic leadership are to slow to act.
Could it be that Pelosi and Leahy are just prodding along, gathering evidence to be used later after the election?
Rather than rallying the Republicans to defend the criminal GOP or allowing a Presidential pardon, the Democratic leadership persistently, and methodically, shows this Administration blocked every attempt to show cooperation.
Instead, this Administration, showed no remorse, therfore it deserves, NO MERCY, when judgment is meted out, there will be no mitigatng factors.
There is no Staute of Limitations for violating your oath.
Lets hope, the next Administration, doesn't pardon or excuse this current Administration's violations.
March 1, 2008 2:17 PM | Reply | Permalink
Resistance
From your lips to Higher Power's ears . But I have little faith anymore that Madam Speaker is actually bidding her time until after the 2008 election . Point of fact it appears that some of the Democratic lEADERSHIP IS ACTUALLY COMPLICIT IN THE WAR CRIMES , RE WATERBOARDING.
What we need is one state attorney general to stand up and file impeachment proceedings in Congress - how do we do that ???
March 2, 2008 5:52 PM | Reply | Permalink
Resistance
From your lips to Higher Power's ears . But I have little faith anymore that Madam Speaker is actually bidding her time until after the 2008 election . Point of fact it appears that some of the Democratic lEADERSHIP IS ACTUALLY COMPLICIT IN THE WAR CRIMES , RE WATERBOARDING.
What we need is one state attorney general to stand up and file impeachment proceedings in Congress - how do we do that ???
March 2, 2008 5:53 PM | Reply | Permalink