Reidblog [The Reid Report blog]

Think at your own risk.
Wednesday, July 25, 2007
Impeach or indict these clowns already...
Will the Democrats ever develop enough intestinal fortitude to actually put teeth into their disdain for the defiant Bush administration and the criminal, lying, perjurious attorney general?

House Democrats finally passed criminal contempt citations against two top White House officials, former White House counsel Harriet Miers and current White House chief of staff Josh Bolten, the first such finding since an EPA administrator nearly went to jail for contempt in the 1980s, an episode described by former Nixon White House counsel John Dean here (And how ironic is it that Fred Fielding, once counsel to Richard Nixon as well as Ronald Reagan, is the man arguing that the White House can summarily dismiss Congressional subpoenas by writ of executive privilege, and that it can also order the Justice Department not to pursue such cases...):
A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power …."

How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.

Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:

Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."

When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)

The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."

Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.

Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.

Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."
Dean concludes that:
This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.
Natch.

In the latest episode, the House Judiciary Committee last week subpoenaed Bolton and Miers to testify about the U.S. attorney firings, and both refused to reply, and in fact, neither showed up for the hearings, setting up the current showdown. According to the AP:
Fielding has offered to make White House officials available for private interviews without a transcript, but Democrats have rejected that.

Conyers subpoenaed Miers and Bolten last month, but neither responded. Miers skipped the hearing to which she had been summoned, infuriating Democrats.

Contempt of Congress would be a federal misdemeanor punishable by up to a $100,000 fine and a one-year prison sentence. If the citation wins support in the full House, it would be forwarded to the U.S. attorney for the District of Columbia — a Bush appointee.

And that's as far as it's likely to go, the Justice Department said in a letter to the committee late Tuesday.

Brian A. Benczkowski, principal deputy assistant attorney general, cited the department's 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."

Benczkowski said it also was the department's view that that applies to Miers, who left the White House earlier this year.
Sound familiar?

So what next? Congress will likely not even take up the contempt issue until after their August recess ... the wussies...

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posted by JReid @ 8:30 PM  
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