The House Judiciary Committee approved a contempt of Congress citation Wednesday against White House Chief of Staff Josh Bolten and one-time Counsel Harriet Miers, setting up a constitutional confrontation over the firings of federal prosecutors.
The Justice Department said it would block the citation from prosecution because information Congress is demanding is protected by executive privilege. Democratic Speaker Nancy Pelosi said the House effort was important nonetheless.
The contempt proceedings, she said, “are part of a broader effort by House Democrats to restore our nation’s fundamental system of checks and balances.”
The 22-17 party-line vote — which would sanction the pair for failure to comply with subpoenas on the firings — advanced the citation to the full House. A vote there is possible this fall.
“I am hopeful that today’s vote will help the administration see the light and release the information to which the Judiciary Committee is entitled,” said Pelosi, D-Calif.
Not likely. The White House has consistently dismissed the effort as legally moot because Bush has declared the information sought by the committee off-limits under executive privilege.
Wednesday action followed nearly seven months of a Democratic-driven investigation into whether the U.S. attorney firings were directed by the White House to influence corruption cases in favor of Republican candidates. The administration has denied that, but also has invoked executive privilege to shield internal White House deliberations on the matter.
White House Counsel Fred Fielding has said Miers, Bolten and other top presidential aides are immune from congressional subpoenas. And the Justice Department let the committee know that any House-passed contempt citation that might be forwarded to the U.S attorney for grand jury consideration would not be allowed to proceed.
“This is something that the drafters of this particular referral know has very little chance of going anywhere,” White House spokesman Tony Snow said just after Wednesday’s vote.
He likened the Democrat-driven investigation into the firings to “throwing mud against the wall and hoping something’s going to stick.”
The Republican former chairman of the House committee, James Sensenbrenner of Wisconsin, suggested the Democrats go to court to directly challenge the White House stand instead.
“The proper thing to do is to determine the executive privilege claim aside from who said what, who refused to submit to what, who didn’t show up to subpoena,” he said.
Added Rep. Chris Cannon, R-Utah: “The real argument here is not over the audacity of the White House, but over the strength of our legal argument.”
Chairman John Conyers did not discount Sensenbrenner’s suggestion. But Conyers he also said the committee could not allow presidential aides to flout Congress’ authority.
“If we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn’t even have to bother to show up, where privilege can be asserted on the thinnest basis and in the broadest possible manner, then we have already lost,” Conyers, D-Mich., said before the vote. “We won’t be able to get anybody in front of this committee or any other.”
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.
Republicans suggested the Democrats’ push was only about politics.
“If the majority really wanted the facts, it could have had them,” said Rep. Lamar Smith, R-Texas.
If history is any guide, the two sides will resolve the dispute before it gets to federal court. Both sides are leery of having a judge settle the question about the limits of executive privilege, for fear of losing.
On the Net:
House Judiciary Committee: https://judiciary.house.gov/