House Judiciary Committee Chair John Conyers (D-MI) forgot to keep his voice down when there are reporters present:

Just off the House floor today, the Crypt overheard House Judiciary Committee Chairman John Conyers tell two other people: "We're closing in on Rove. Someone's got to kick his ass."

Asked a few minutes later for a more official explanation, Conyers told us that Rove has a week to appear before his committee. If he doesn't, said Conyers, "We'll do what any self-respecting committee would do. We'd hold him in contempt. Either that or go and have him arrested."

The chairman seems to have been having fire for breakfast lately, pursuing the testimony -- with the threat of a subpoena -- of a number of former administration figures, including Dick Cheney's consigliere David Addington. And of course he's also been pursuing Rove to testify about the prosecution of ex-Gov. Don Siegelman (D-AL). Yesterday, in somewhat more diplomatic language, Conyers refused Rove's offer to testify in writing.

House Judiciary Committee Chair John Conyers' (D-MI) response to Karl Rove's offer to testify by letter: Nope.

The committee wants Rove to testify about his role in the prosecution of ex-Gov. Don Siegelman (D-AL), but Rove has refused to appear for a hearing, instead offering to speak privately with staff off the record. He modified that offer to testify by letter.

But Conyers says that's a no-go. If Rove is willing to create a record with a letter, he argues, then there's no reason why he shouldn't be willing to sit down with staff for an on-the-record interview. Conyers says the committee is prepared to offer "other possible accommodations, such as providing a list of initial questions that may be asked," but there must be a live interview and a transcript. Conyers again mentions the possibility of a subpoena should talks break down.

So now the ball is in Rove's court.

Read more »

Throughout the House Judiciary Committee's struggle to obtain White House documents and have Harriet Miers testify about the U.S. Attorney firings, House Republicans adopted a contrary stance.

They're firm believers in Congressional oversight, they said, but citing Miers and White House chief of staff Josh Bolten with contempt of Congress was the wrong way to go. If they lost the battle in court, then the executive would come out much stronger. It would "make the presidency in America, a much stronger, imperial office," as Rep. Chris Cannon (R-UT) put it. Democrats, of course, think we're already there.

Well, now House Republicans have brought their opposition to court. In a filing yesterday, House Minority Leader John Boehner (R-OH), House Minority Whip Roy Blunt (R-MO), House Judiciary Committee Ranking Member Lamar Smith (R-TX) and Rep. Cannon asked the court to allow them to file a brief in the case arguing against the House's suit and with the administration. They are just trying to save the House from itself, they write:

Read more »

Last Friday, administration lawyers for the first time laid out their argument against the House's lawsuit to enforce Congressional subpoenas from the U.S. Attorney firings scandal. The House is seeking to enforce the House Judiciary Committee's subpoena of former White House counsel Harriet Miers and current chief of staff Josh Bolten.

The 83-page motion laid out a number of arguments for why the judge should dismiss the suit, but the central one was that the courts should not get involved because historically, they haven't. From the AP:

"For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise," Justice Department lawyers wrote....

"Never in American history has a federal court ordered an executive branch official to testify before Congress," lawyers for the White House wrote.

That makes for a murky area of law, and the Bush administration is urging U.S. District Judge John D. Bates not to tidy it up. The ambiguity fosters compromise, political solutions and the kind of give and take that the Founding Father envisioned, attorneys said.

Clearing it up "would forever alter the accommodation process that has served the Nation so well for over two centuries," attorneys wrote.

As part of their argument, the administration lawyers cited Congress' considerable leverage as the more traditional means of getting what it wants. This is from the motion:

And the Legislative Branch may vindicate its interests without enlisting judicial support: Congress has a variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution.

It's not a tactic that Congress has employed over the past couple years, with a few exceptions. But maybe they ought to take the administration up on its own advice and see how it goes.

Last July, the House Judiciary Committee requested documents from the Justice Department about three cases that seemed to be the worst cases of selective prosecutions undertaken by George Bush's DoJ. In each case, the U.S. attorney had pursued a flawed case that hurt a prominent Democrat.

Since that time, the Department has refused to turn over all but a few documents -- though one of the produced emails showed a DoJ official troubled by one of the cases, the Georgia Thompson prosecution (the other two cases are ex-Gov. Don Siegelman (D-AL) and Cyril Wecht). And in a letter on Friday, Conyers warned Attorney General Michael Mukasey that if the Department did not take notice, "we will have little choice but to consider the compulsory process." You can see that letter here.

Conyers included in his letter a three-page chart of requests (pdf) made by the committee that have gone unanswered by the Department. "We very much that the pending requests can be resolved voluntarily," he writes.

The next step in the House Judiciary Committee's attempts to hear from the architects of the administration's interrogation policy: the panel just voted to authorize a subpoena for David Addington. Last week, Addington indicated that he might appear to testify if the committee subpoenaed him. It's not clear yet when that hearing might be.

The committee also is seeking to hear from John Yoo, John Ashcroft, Doug Feith, former CIA Director George Tenet, and former lawyer in the Office of Legal Counsel Daniel Levin. The committee continues to negotiate with all of those possible witnesses about appearing in the future, according to a press release yesterday. During the vote just now, Rep. Jerrold Nadler (D-NY) said that "most" of the witnesses the committee wanted to hear from had agreed to appear.

It's deja vu all over again.

House Judiciary Committee Chair John Conyers (D-MI) says that if Karl Rove won't agree to testify before his committee about his involvement in the prosecution of former Alabama Gov. Don Siegelman (D), then he'll be forced to consider issuing a subpoena. You can read his letter to Rove's lawyer Robert Luskin below.

In response to Conyers' initial request for Rove to testify, Luskin offered to have Rove speak to the committee behind closed doors, without a transcript and not under oath -- the same offer administration lawyers made to Congress in the U.S. attorney firings investigation. And you know where that went: the House is currently suing to enforce those subpoenas after finding former White House counsel Harriet Miers and chief of staff Josh Bolten in contempt of Congress.

Rove was subpoenaed by the Senate Judiciary Committee as part of that investigation and refused to show up to testify. That committee subsequently voted to find him in contempt, but the full Senate never voted on the citation.

Read more »

Last month, the judge handling the House's suit against Harriet Miers and White House chief of staff Josh Bolten set a schedule that will culminate in a June hearing, when both sides will get to argue. Up until then, both sides will be submitting written arguments pleading their side of the case.

First up were lawyers for the House, who wrote, "Not since the days of Watergate have the Congress and the federal courts been confronted with such an expansive view of executive privilege as the one asserted by the current presidential administration and the individual Defendants in this case." You can read the entire 45-page motion here.

House lawyers, following through on the contempt citations from the House Judiciary Committee, are trying to convince the judge to rule with them on certain narrower questions of executive privilege in an attempt to actually get hear from Harriet Miers and see some White House documents relevant to the U.S. attorney firings sometime this year.

We knew that the House's lawsuit against White House officials would take awhile. And it turns out that it'll be June, at the earliest, before a judge makes his first decision in the House's suit against Harriet Miers and White House chief of staff Josh Bolten.

That relatively rapid pace (for the courts, at least) is the result of the House pushing for quicker resolution of some of the White House's more expansive claims of executive privilege. The court will decide first whether administration lawyers are right when they say that Miers didn't even need to show up in response to the House Judiciary Committee's subpoena and that both Bolten and Miers didn't even need to indicate what sort of documents the White House were claiming privilege for. Thornier issues (e.g. whether certain conversations that do not involve the president are covered by executive privilege, etc.) would be dealt with later. The House has sought this speedier resolution with the hope that it would mean they'd actually get to hear from Miers and see some documents from Bolten before the close of the Bush administration.

Last Friday, the judge set a schedule for both sides to submit motions and set a hearing for June 23rd when the House's general counsel and Justice Department lawyers will argue before the judge. But whichever way the judge eventually rules, the decision would likely be appealed all the way up to the Supreme Court, meaning that regardless of the House's desire for a speedy resolution, the case is bound to spend a long time in the courts before Congressional investigators see any of its fruits.

A quick update on the House's lawsuit against Harriet Miers and White House chief of staff Josh Bolten. From The Politico:

The House General Counsel's Office, which is representing the Judiciary Committee in a civil contempt lawsuit against White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, has asked a federal judge to set up an expedited schedule to resolve portions of the case, a schedule that would require a ruling by this summer, according to court documents filed today.

The Justice Department, which is representing Bolten and Miers in the case, countered that the only reason the Judiciary Committee is seeking a speedy determination of the case is so that it "recommence prior to Congress' August recess" its investigation into the firing of nine U.S. attorneys in 2006. The Justice Department wants a slower review of the contempt case, and it is already warning that it may appeal any ruling that goes against it.

What the House wants is to just settle the White House's more expansive claims of privilege -- namely, that Miers didn't even need to show up in response to the House Judiciary Committee's subpoena and that both Bolten and Miers didn't even need to indicate what sort of documents the White House were claiming privilege for.

A private conference is scheduled for tomorrow. The judge's decision will likely indicate whether the House has any hope of hearing any actual testimony from Miers or seeing any documents from Bolten during the Bush administration.

And we're on to the next step of the Congress v. White House subpoena battle.

First, the House found Harriet Miers and White House chief of staff Josh Bolten in contempt for refusing to respond to House Judiciary Committee subpoenas from the U.S. attorney firings investigation. Then, the Justice Department, as Attorney General Mukasey had warned it would, refused to convene a grand jury and rebuffed the criminal referral. And now we're on to step three: a lawsuit against the administration to enforce the subpoenas.

As Chairman John Conyers (D-MI) says, "It is extremely rare that Congress must litigate in order to enforce subpoenas and no compromise can be reached. Unfortunately, this Administration simply will not negotiate towards a compromise resolution so we must proceed."

He looks forward to "a quick and favorable ruling by the Court, so that we can complete our investigation." The expectation on all sides, though, is that this will likely drag on for many months.

We'll keep you updated as the case moves forward.

You can read the 36-page complaint here (pdf).

Jonathan Turley, professor of law at George Washington, writing today in The Los Angeles Times:

The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey's action.

In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers....

When reduced to its purest form, Mukasey's Paradox is that government officials cannot violate the law -- but that because executive privilege is also a law, it's sometimes necessary to violate the law in order to uphold the law.

As expected, Attorney General Michael Mukasey gave the House the legal finger on Friday in response to a criminal referral for White House aides' contempt of Congress. Think of that what you will, the House has been forced on to Plan B, a civil suit against the White House.

Roll Call (sub. req.) reports it should be coming soon:

House Democrats said a civil lawsuit could be filed as early as this month that challenges the Bush administration’s claims of executive privilege in curtailing aides from testifying on Capitol Hill….

According to Democratic sources, staff is working expeditiously to finalize the lawsuit, which is expected to be filed in the U.S. District Court for the District of Columbia before the House recesses for two weeks on March 14.

The general counsel, which will file the lawsuit on behalf of the House Judiciary Committee, is expected to urge the federal court to rule on the legitimacy of the Bush administration’s claims that executive privilege protects conversations between Miers and Bolten and the president. The court also could compel both individuals to testify before the House committee.

No surprise here. From The Washington Post:

Attorney General Michael B. Mukasey refused yesterday to refer two new House contempt citations to a federal grand jury, saying the White House aides involved in the case cannot be prosecuted because they were following legal advice from the Justice Department.

In a letter to House Speaker Nancy Pelosi (D-Calif.), Mukasey said the refusal by White House Chief of Staff Joshua B. Bolten and former presidential counsel Harriet E. Miers to comply with congressional subpoenas "did not constitute a crime."

So now it's on to court, where we'll have the novel situation of the House Judiciary Committee suing the White House.

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.

As we noted earlier, there was something of an uproar in the House this morning when a Republican called for a vote during the memorial service for Rep. Tom Lantos (D-CA). The vote was part of a general Republican effort to delay the scheduled vote on contempt resolutions against White House officials.

As the Politico reported, there has already been plenty of rancor over the move. The Dems, via a spokeswoman for House Majority Leader Steny Hoyer (D-MD) called the move "unjustifiable." But GOPers said it was justifiable, and explained that the Dems were really at fault because they broke their commitment to keep the House in recess during the memorial service:

"The reason for the chaos is the majority," [Jo Maney, a spokeswoman for Republicans on the House Rules Committee] said. "We made clear we would use every procedural rule" to delay the contempt votes.

"There was an agreement that there would be no votes during the service, but they [Democrats] rang the bells" to bring the House back into session, Maney said.

But a Dem leadership aide responded that that explanation doesn't hold water:

“This is the height of disrespect and completely shameful. None of their procedural options were denied by starting when we did; they just chose to call for a vote at the most inappropriate time. The idea that Republicans had no choice is preposterous, all they had to do was allow debate to continue for another 20 minutes and the service could have concluded in peace.”

We've bounced it back over to the Republican to side to see if they have a rejoinder. Here's video of Rep. Lincoln Diaz-Balart (R-FL) explaining why he called the vote.

Update: Here's CQ's version of what happened.

Update: To cap it all off, see House Minority Whip Roy Blunt's (R-MO) floor comments on this below:

Read more »

Well, after all that -- after seven months, it's done. The House passed the contempt resolution against White House chief of staff Josh Bolten and Harriet Miers, 223-32. Most Republicans, having staged their walk out, did not vote.

So now the ball's in Attorney General Michael Mukasey's court. He's expected to decline to enforce the citation of contempt, since both Bolten and Miers declined to testify as a result of an assertion of executive privilege.

The resolution included both a criminal contempt citation and the authorization for the House Judiciary Committee to sue the White House if Mukasey refuses to enforce the citation. You can read those here.

Update: Here's the final tally.

The House GOP has been doing their best to kick this can down the road, even igniting something of a fracas. From The Politico:

During what was supposed to be a somber memorial service in Statuary Hall for Rep. Tom Lantos, who died Monday, the House chamber became mired in chaos over procedural votes.

Democrats angrily denounced the GOP as insensitive for calling a "motion to adjourn" — essentially a dilatory tactic — while dignitaries were still giving tributes to Lantos, a Holocaust survivor who was chairman of the Foreign Affairs Committee. But Republican aides shot back quickly, saying it was Democrats who broke an agreement to keep the House in recess during the memorial service....

More at Huffington Post.

We'll have results from the vote when the House finally gets to it.

As expected, things are finally moving forward in the House today to bring contempt resolutions against White House officials for ignoring Congressional subpoenas as part of the U.S. attorney firings investigation.

House Judiciary Committee Chair John Conyers (D-MI) introduced two resolutions this afternoon related to the subpoenas. The first is a criminal contempt resolution against White House chief of staff Josh Bolten and former White House counsel Harriet Miers -- both were subpoenaed and did not respond, citing the White House's invocation of executive privilege. But Conyers also filed a resolution that Speaker Nancy Pelosi (D-CA) file a civil suit against the White House.

Update: You can read both of those resolutions as prepared here. The second resolution would authorize the House Judiciary Committee to go to court, where it would be represented by the House general counsel

That second resolution would serve as an available alternative should Attorney General Michael Mukasey follow through on his threat not to enforce the criminal citation. The battle would then head into court, where a judge would have a shot at sorting out the White House's far-reaching assertion of privilege.

The House rules committee is expected to meet and begin work on both of these resolutions in the next hour.

Just to complete the theme of the day, Michael Mukasey said today that if Congress passed contempt citations against current and former White House officials based on their refusal to respond to subpoenas, the Justice Department would not enforce them, as federal law instructs.

Rep. Robert Wexler (D-FL) was the one who first popped the question. If Congress passed a citation against White House chief of staff Josh Bolten, who, along with former White House counsel Harriet Miers and Karl Rove, refused to show up when subpoenaed by Congress as part of the U.S. attorneys investigation -- would the DoJ enforce it?

Mukasey's simple answer was "no." Enforcing the contempt citation is "not permitted when the president directs a direct adviser of his, somebody who directly advises him, not to appear or when he directs any member of the executive not to produce document."

This is not much of a surprise. The administration has been saying this since last summer. And Mukasey indicated some wariness on the question during his confirmation hearing -- although he said he hoped he wouldn't have to make that decision.

So now Congress knows what the answer will be if the Congressional leadership ever decides to bring it to a vote.

Read more »

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.