Congress is busy with some pretty weighty issues these days: the faltering economy, Iraq and government surveillance just to name a few. And it seems that no one's got the time to respond when the administration tells Congress to stick their subpoenas where the sun don't shine.

Last summer, former White House counsel Harriet Miers didn't even show up in response to a House Judiciary Committee subpoena for testimony related to the U.S. attorney firings. They got an empty chair (see above). The same went for Karl Rove in the Senate Judiciary Committee. Both argued that executive privilege protected them from even appearing to invoke that privilege. The two committees also subpoenaed White House chief of staff Josh Bolten for documents and got nothing in return.

Rep. John Conyers (D-MI) promptly got a contempt citation passed in his committee for both Miers and Bolten in late July, shortly before the summer recess. But it's not official until passed by the full House. When Congress returned, though, nothing happened. Then a vote was supposedly imminent in November -- Conyers even issued a final warning to the White House. But then the vote didn't come (Iraq and FISA got in the way, top Dems said). Then it was supposed to come shortly after the winter recess. Now, well, you know:

Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would “step on their message” of bipartisan unity in the midst of the stimulus package talks....

“Right now, we’re focused on working in a bipartisan fashion on [the] stimulus,” said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves....

“When we have the votes, we’ll go ahead with this. Right now, the votes are just not there,” said one top House Democratic insider, speaking on the condition of anonymity.

Read more »

From The Washington Post:

In its first couple of weeks after it returns tomorrow, the House is likely to take up contempt-of-Congress resolutions against White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers for their refusal to appear before Congress for questioning about the 2006 removal of nine U.S. attorneys, Democratic leadership aides said.

For those keeping track at home, it's been nearly six months since the House Judiciary Committee initially approved the contempt citations. As for what the timing might be on the Senate side, where the Senate Judiciary Committee recently approved contempt citations for Karl Rove and Bolten, it's not yet clear.

Earlier we noted that the Senate Judiciary Committee had voted to approve contempt resolutions against Karl Rove and White House chief of staff Josh Bolten for failing to comply with subpoenas from the U.S. Attorney firings probe.

The final vote tally was 12-7, with two Republicans, Sens. Arlen Specter (R-PA) Chuck Grassley (R-IA) crossing over.

Now, it's up to Senate Majority Leader Harry Reid (D-NV) as to when (or whether) he'll scheduled a vote on the Senate floor. When we asked a Reid aide last week about it, we were told the Reid would consult with Sen. Patrick Leahy (D-VT) about it when the time came.

Meanwhile, the House Judiciary Committee's contempt citations against Harriet Miers and Bolten have been sitting on Speaker Nancy Pelosi's (D-CA) desk since July. After much delay, Dem House leadership aides said last month that the vote had again been delayed to December. So now's the time. Perhaps the Senate and House will team up and schedule both votes before the New Year, sending the White House contempt citations against Rove, Miers, and Bolten as a Christmas gift. Or maybe nothing will happen. Stay tuned.

Karl Rove is gone, but not forgotten.

Senate Judiciary Committee Chairman Patrick Leahy has scheduled a vote tomorrow on whether to issue contempt citations to Rove and White House chief of staff Josh Bolten for ignoring Congressional subpoenas from the U.S. attorneys investigation. Of course, Republicans might defer the vote for another week. But at the latest, the citations would be sent to the Senate floor next Thursday.

And then it's up to Senate Majority Leader Harry Reid (D-NV). His counterparts in the House leadership have delayed a vote for contempt citations against Harriet Miers and Bolten since July. We've got a question in to see whether Reid will be speedier. We'll let you know what we hear.

Update: A Reid aide responds that "after the Committee acts on this issue, Senator Reid will consult with Senator Leahy about how to move forward on it." Maybe things will be clearer next week.

And for those who didn't catch our interview with Sen. Sheldon Whitehouse (D-RI) about the contempt citations earlier this week, check it out.

No, he hasn't forgotten. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) took a step today towards contempt proceedings against Karl Rove, two of his former aides, and White House chief of staff Josh Bolten for not complying with subpoenas related to the U.S. attorney firings.

There hasn't been much movement since this summer, when Leahy issued the subpoenas. The administration claimed executive privilege for all documents and testimony sought, and said that Rove didn't need to even show up for a hearing. Rove's aides Sara Taylor and Scott Jennings appeared, but refused to discuss the firings. A subpoena for documents was sent to Bolten, and the White House refused.

Today, Leahy ruled that the claims of executive privilege and immunity were not legally valid, a necessary step toward issuing contempt citations in the committee. He didn't say when he might do that.

The timing for this might have something to do with what's going on in the House, where leaders have said they plan to schedule a floor vote to find former White House counsel Harriet Miers and Bolten in contempt for ignoring subpoenas there. That vote has been repeatedly delayed and is currently expected to take place next month.

December: a time of carols, sleigh bells, and contempt citations.

The House Democrats were set to hold a vote this Friday on whether to find White House officials in contempt of Congress for ignoring subpoenas related to the U.S. attorney firings investigation, The Politico reports. But no more. The vote, already delayed since July, has been pushed to December, at the earliest. The reason? The Politico quotes a "top House Democratic leadership aide": "[Rep. Rahm Emanuel (D-NY)] has been saying that this week is not the time to do this, that it will step on our message on Iraq and FISA."

So at least former White House counsel Harriet Miers, who refused to even show up for a House Judiciary Committee hearing, can enjoy her Thanksgiving. Happy feasting, Harriet!

The wheels are once again in motion towards the first court battle between the Democratic Congress and the White House. After a months-long lull, preparations are underway for a vote in the House to find White House chief of staff Josh Bolten and former counsel Harriet Miers in contempt of Congress.

Today, House Judiciary Committee Committee Chair John Conyers (D-MI) sent his final offer over to White House counsel Fred Fielding (see below). The letter lays out a process where Congressional investigators would get what they want -- documents and testimony concerning the U.S. attorney firings -- while bowing to some White House conditions. But there's a deal breaker in there. And that's Conyers' request for "on-the-record interviews" with current and former White House staffers. Ever since the spring, the White House has refused transcribed interviews, and there's no indication that having dragged out the struggle this long, the adminstration would accept that offer now.

So the Congressional wheels are turning. Today, in addition to the letter to Fielding, Conyers submitted the committee's contempt report to the full House, a prelude to a vote on a criminal contempt resolution. Both the Democratic and Republican leadership have already launched their struggle for votes, with a special concentration on moderate Dems.

As we've noted before, things will get interesting if that vote should pass, since the Justice Department has already signaled it's refusal to enforce the resolution. Some sort of court battle is likely to ensue. Attorney general nominee Michael Mukasey has already said he hopes he'll never have to deal with that, so if he's lucky, the Dems will hold the vote before he's confirmed. Otherwise, it might be his first test on the job.

Read more »

Nobody said the Republicans were going to take it lying down. From The Politico:

With House Democrats considering a floor vote on a contempt resolution against current and former White House aides, Republicans have begun privately plotting a public relations offensive designed to persuade the majority party to drop the issue and move on.

Top GOP leadership and Judiciary Committee staff held a strategy session Tuesday to discuss targeting conservative Democrats — especially those who represent Republican-friendly districts — with floor speeches, private lobbying and other efforts, if Democrats proceed with plans to hold top White House officials in contempt, according to participants in the meeting. Republicans called the emergency session after learning top Democrats were privately asking their members if they should force votes to hold White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers in contempt for failing to provide testimony as part of congressional investigations.

The House Judiciary Committee passed the contempt resolutions in July, remember, after Miers failed to even show up (see image of empty seat above) after receiving a subpoena related to the U.S. attorney firings.

Better late than never. Three weeks ago, we reported that the House leadership seemed to be wavering in its pursuit of contempt citations for White House chief of staff Josh Bolten and former counsel Harriet Miers. Both of them, remember, refused to even show up in response to a House Judiciary Committee subpoena relating to the U.S. attorney firings.

But now things seem to be moving along again. The Politico reports that vote counting has begun and quotes a House aide as saying that a vote is likely in the next couple of weeks.

The committee passed the resolutions in July, and once the House votes on them, they would be referred to the U.S. attorney for Washington, D.C. What happens then will be, to say the least, interesting. Michael Mukasey was a noncommittal on that question during his confirmation hearing last week. And the Miers and Bolten contempt citations aren't likely to be the only ones.

The Dems are apparently confident that they could easily pass the resolutions despite no likely Republican crossovers. For his part, Rep. John Conyers (D-MI) has put the emphasis on institutional integrity, rather than subjecting Harriet Miers to a frog march:

Conyers said the contempt battle was not aimed at seeking criminal sanctions against Bolten and Miers personally, but would nonetheless surely spark a long legal fight over the reach of executive privilege.

“Remember – no handcuffs,” Conyers said in an interview Thursday, noting that contempt of Congress is a misdemeanor.

"The scandal at the Department of Justice has gone on long enough," said Rep. Rahm Emmanuel (D-IL) back in March. "Careers have been destroyed and legitimate public corruption cases have been derailed. It is time for accountability -- it is time for the truth."

Six months and several Department senior resignations later, it's a different time. The urgency is gone.

More than two months after the House Judiciary Committee passed contempt resolutions against White House chief of staff Josh Bolten and former counsel Harriet Miers for ignoring committee subpoenas, it's still unclear when, or if, Democrats will hold a vote on the full floor.

The leadership has indefinitely delayed taking up the issue. House Democratic Caucus Chairman Rahm Emanuel (D-IL) told The Politico last month, “I don’t think anything is going to happen on that for a while,” and couldn't offer a range. Three weeks later, that hasn't changed.

And apparently scheduling concerns are not all that's at issue. A source familiar with the ongoing discussions told TPMmuckraker that getting the leadership to bring the contempt resolutions to the floor at all is an "uphill struggle."

Read more »

In the heat of the summer, it seemed inevitable that the White House and Congress were destined to clash in court over a number of subpoenas, most relating to the U.S. attorney firings investigation. But that's appearing less and less likely.

Sen. Patrick Leahy (D-VT) has been warning since the beginning of the week that the confirmation of Michael Mukasey as attorney general depended on the White House turning over certain "information."

Leahy has been uncharacteristically vague about just what "information" that might be, as the negotiations are ongoing, but there are a number of outstanding requests that Leahy might have in mind. Below is our accounting of where those many requests, along with those from Leahy's House counterpart, Rep. John Conyers (D-MI), stand. It's also a reminder of the many loose ends that remain in the U.S. attorney firings probe.

Read more »

During a press conference this afternoon, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced that the White House had still not responded to the committee's subpoena for documents relating to the legal basis for the warrantless surveillance program. "Time is up," Leahy said, "we've waited long enough." He went on to say, however, that he remained open to cooperating with the White House for the production of the documents: "I prefer cooperation to contempt." But if the administration has still not responded to the subpoena by September when Congress returns from recess, he said that he would pursue contempt proceedings in the committee "if that's what it takes."

You can see video here:

Leahy made clear that contempt proceedings would be a measure of last resort and that he'd prefer getting the documents through cooperation to a long court battle. On the other hand, he signaled that there's a limit to what that cooperation might mean. Asked by a reporter about noise from the White House that it would need certain "accommodations" in turning over documents relating to the surveillance program, Leahy said "the only accommodations we tend to get from the White House are 'do it our way and we'll be happy with you.'" That said, he clearly remained open to negotiating, saying that it was a choice between a court battle and "find out what happened."

Read more »

On Friday, the White House requested a second extension to the deadline to comply with subpoenas issued about the origins of the warrantless surveillance program. Senate Judiciary Committee Chairman Patrick Leahy's (D-VT) response? "The deadline is 2:30," says Leahy spokeswoman Erica Chabot.

White House counsel Fred Fielding wrote in a letter to the committee Friday that the White House needed until after Labor Day to cull its files for information pertinent to the legal justifications for the surveillance program -- and, in any event, practically all of it falls under executive privilege.

The original compliance deadline was July 18, but the committee and the White House agreed to an extension after Fielding and chief of staff Josh Bolten called Leahy to say that "thorough collection and review of responsive documents" would take until around August 1. After another week lapsed beyond that, on August 8, Leahy told the White House that August 20 -- today -- is the final deadline.

Read more »

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) wants to have a talk with President Bush. Man to man. Subpoena issuer to stonewaller. Just the two of them to work it out.

Leahy made the offer in a letter (pdf) to Bush yesterday (see below). In it, he explains why it's time to chat. "The accumulated evidence" from the U.S. attorney firings investigation, he writes, "shows that the list of those to be fired was compiled based on input from the political ranks in the White House and that the reasons publicly given for these firings were contrived as part of a cover up."

The White House has rebuffed the committee's efforts to speak with Karl Rove at all, based on an assertion of executive privilege -- and though Rove's aides Scott Jennings and Sara Taylor at least showed up to testify, they refused to discuss any internal White House deliberations about the firings. So now Leahy stands ready to issue citations for contempt of Congress to those who've refused to testify (meaning Rove for certain -- it's still unclear whether he'll move to cite Rove's aides).

Standing at the brink, Leahy writes that his colleague Sen. Arlen Specter (R-PA) has asked him "to write to you directly and suggest that we sit down together to work out our differences. That is the purpose of this letter."

Read more »

Saying that he's waited long enough for the White House to comply, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) set a new deadline for documents related to the administration's warrantless wiretapping program today. August 20th is the date, and Leahy expects to receive documents concerning the legal basis for the program (in its variety of forms dating back to 2001), in addition to authorization documents.

Leahy had, at the request of White House counsel Fred Fielding, delayed a prior deadline. But now that an informal date suggested by the White House has come and gone, Leahy writes to Fielding that he's running out of patience:

Despite my patience and flexibility, you have rejected every proposal, produced none of the responsive documents, provided no basis for any claim of privilege and no accompanying log of withheld documents. I had been requesting this information for an extended time before issuing the subpoenas.

Included in that request are documents surrounding then-Deputy Attorney General James Comey's refusal to reauthorize the surveillance program. That refusal led to the March 10, 2004 showdown between Comey and Alberto Gonzales at John Ashcroft's hospital bed.

Read more »

The Justice Department sent a letter yesterday to the House Judiciary Committee that made the administration's position official: a U.S. attorney will not enforce a citation of contempt, should it pass the House.

Or as the letter (you can read it here), sent to the committee yesterday by Principal Deputy Assistant Attorney General Brian A. Benczkowski, put it:

"As it considers the contempt resolutions, we think it is important that the Committee appreciate fully the longstanding Department of Justice position, articulated during Administrations of both parties, that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."

That last quote is indeed from a 1995 opinion from Clinton's Justice Department, which The Washington Post reported on this weekend. As the Clinton-era DoJ officials behind that memo told the Post, they didn't think that Congress could force the U.S. attorney to prosecute, but did think that the president's assertion of executive privilege should be heard in court.

Of course, the committee chose to press on with the contempt citation anyway, forcing the issue, and the clash will likely nevertheless land in court.

Note: As we've noted earlier, whatever the DoJ has said about it, the U.S. attorney for Washington, D.C., Jeffrey Taylor (or someone in his office if he's forced to recuse himself), will still have to make the ultimate determination as to whether to enforce the contempt citation.

Read more »

The Democrats' case is simple. Former and current White House officials have "absolute immunity" from Congressional subpoenas, according to this administration. And not only can they ignore a subpoena, but if Congress were to try and enforce that subpoena through a citation of criminal contempt, the administration would prohibit the District of Columbia's U.S. attorney from moving forward. That's a contemptible display of executive power, Democrats argue.

But the threat you fear may be worse than the threat you know. Or at least that's what Republicans argued during this morning's debate on whether the House Judiciary Committee ought to cite Harriet Miers and Josh Bolten with contempt. You can see our highlight reel of the back and forth here (Rep. Adam Schiff (D-CA) lays out the Dems' case towards the end):

Rep. Chris Cannon (R-UT) laid it all out. There is "no evidence" of wrongdoing by the White House in the U.S. attorney firings, he says. And since there's no wrongdoing, it's likely that Congress will lose its battle with the White House in court. And if they lost, he says, future claims of executive privilege by the White House would be much stronger, since they'd be resting on the Supreme Court's decision. And that would "make the presidency in America, a much stronger, imperial office." Rep. James Sensenbrenner (R-WI) agreed, saying that Congress was in danger of handing the White House "a blank check."

A bemused John Conyers (D-MI) responded that he was glad that both sides of the aisle agreed on opposing an imperial presidency. "It's a concern that we share," he said, citing Cannon's concern of creating an imperial presidency. "Please, that's the last thing I want to do."

The citation, of course, passed along party lines.

As expected the House Judiciary Committee approved citations of contempt against Harriet Miers and Josh Bolten in a vote just a few minutes ago. The vote was along party lines, 22-17. We'll have more from the committee's meeting shortly.

The AP reports, citing "a senior Democratic official," that "a vote by the full House would most likely happen after Congress' August recess."

The House Judiciary Committee is meeting now to vote on whether to cite former White House counsel Harriet Miers and White House chief of staff Josh Bolten with contempt. The result of the vote isn't cause for much suspense, and neither is the probable Republican reaction, given that committee GOPers have consistently backed the White House in the dispute.

In preparation for the hearing, the committee has produced a 52-page memo (pdf) on the U.S. attorney firings in support of the resolution of contempt. The report lays out the numerous ways that administration officials might have broken the law in carrying out and then covering up the firings. The report goes a long way toward meeting the main quibble from Republicans on the committee, that Congress would be likely to lose a court battle over the assertion of executive privilege if they could not show criminal wrongdoing.

We'll have highlights from the hearing up soon after.

Despite the administration's statements that a U.S. attorney would not be permitted to enforce a contempt citation from Congress, the House Judiciary Committee will vote Wednesday on whether to cite Harriet Miers and Joshua Bolten with statutory contempt, according to a senior committee aide.

"This is a step we have to take to continue the process," the aide told me. "We're obviously aware of The Washington Post's story, and we're reviewing all of the options that are available to us."

According to the law, D.C.'s U.S. attorney Jeffrey Taylor is required to enforce Congress' citation, but the administration has argued that such a citation against a current or former White House aide for asserting executive privilege is unenforceable. Despite that, however, it would still be up to Taylor to make the determination. A further complication is that Taylor might be forced to recuse himself from the proceedings, due to his ties to some of the central players in the U.S. attorney firings.

The committee also has the option of "inherent contempt," which would result in a trial before Congress -- but as the Post reported this weekend, such an option isn't under "serious consideration" by Democrats.

See my post last week as for what might happen if Taylor were to refuse to enforce the citation.

The other shoe drops.

The House Judiciary Committee will meet this Wednesday to vote on contempt citations against former White House counsel Harriet Miers and White House chief of staff Josh Bolten, the committee announced today.

Says Chairman John Conyers (D-MI):

"This investigation, including the reluctant but necessary decision to move forward with contempt, has been a very deliberative process, taking care at each step to respect the Executive Branch’s legitimate prerogatives. I've allowed the White House and Ms. Miers every opportunity to cooperate with this investigation, either voluntarily or under subpoena. It is still my hope that they will reconsider this hard-line position, and cooperate with our investigation so that we can get to the bottom of this matter."

The committee had issued a kind of final deadline to Bolten to comply with the committee's subpoena by this morning. And in a letter this morning, White House Fred Fielding gave the same answer. The committee is targetting Bolten because the subpoena for White House documents related to the U.S. attorney firings was addressed to him, since he's the custodian. Miers, remember, refused to even show up for a hearing before the committee two weeks ago.

The next step after the vote in the committee would be a vote in the full House.

Update: See update here for details on the vote.

A Congressional subpoena: to the Bush administration, it's just a piece of paper.

The administration will not permit a U.S. attorney to enforce a citation of contempt against Congress, as federal law instructs. That may shock you, but it's all old news, "a senior administration official" tells The Washington Post:

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case.... And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen....

"It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

Of course, the expert on executive privilege quoted by the Post doesn't think it's such a settled question (the president's is a "breathtakingly broad assertion"). The administration points to an opinion from the Justice Department's Office of Legal Counsel during the Reagan years as support -- of course, that's just an opinion, which remains untested by the courts. The logic is that a U.S. attorney, as a subordinate of the executive branch and thus a representative of the president, would be prosecuting another presidential subordinate for asserting executive privilege. And you just can't have that. Or as an expert puts it to the Post: "Because we control the enforcement process, we are going to thumb our nose at you."

So what now? Certainly with the outright contempt being shown for Congress by the administration, it won't be long before they send the contempt right back. Harriet Miers will likely be first up, for her refusal to testify about the U.S. attorney firings, followed closely by White House chief of staff Josh Bolten, who, on behalf of the White House, has refused to turn over documents. The Chair of the Republican National Committee might also be cited with contempt for refusing to turn over White House emails on RNC accounts. Also under subpoena and the likely subject of an executive privilege battle are the documents related to the president's warrantless wiretapping program

But if the U.S. attorney is unwilling to enforce a criminal citation of contempt, all those matters would end there unless Congress took other steps.

There is the option of inherent contempt, where the House or Senate Sergeant-at-Arms would seize the offending witness. A kind of Congressional trial would follow. If found guilty, the person could be detained until compliance with the subpoena or until the session of Congress ends. As the Post notes, that hasn't happened since the 1930's and (much to the chagrin of many TPM readers) seems unlikely to happen now.

As Marty Lederman points out, another option remains: "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." No doubt the Bush administration would seek somehow to quash that option, too. That would start a likely long process through the courts of motions, counter-motions, and appeals all the way up to the Supreme Court.

Yep. As we said before, a president with nothing left to lose makes for a formidable stonewaller.

Today, the House Judiciary Committee took another step in its confrontation with the White House, with a ruling that the administration's claim of executive privilege to protect White House documents relevant to the U.S. attorney firings is invalid.

The ruling is a stepping stone towards a possible of vote of contempt against White House chief of staff Josh Bolten, on whom the subpoena was served last month. The committee ruled against Harriet Miers' reliance on executive privilege last week when she refused to comply with a subpoena.

Update: For those legal eagles among you, the content of the ruling, by subcommittee Chairwoman Linda Sanchez (D-CA), is below.

Read more »