Mukasey Orders U.S. Attorney to Ignore Contempt Citations
According to an Associated Press story, on Friday, Attorney General Michael Mukasey refused to permit U.S. Attorney for the District of Columbia Jeffrey Taylor to bring contempt citations against two senior Bush administration aides before a grand jury despite being directed to do so by the U.S. House of Representatives.
In H. Res. 979, the House of Representatives instructed Speaker of the House Nancy Pelosi to certify to U.S. Attorney Taylor that White House Chief of Staff Joshua Bolton and former White House Counsel Harriet Miers refused to produce documents and testify before the Judiciary Committee as directed by subpoena, and direct the U.S. Attorney to bring legal proceedings against the two aides “in the manner and form provided by law.” Bolton and Miers had refused to comply with a subpoena requiring testimony on the White House’s firing of federal prosecutors.
Speaker Pelosi sent this letter to Attorney General Mukasey in anticipation of an order Mukasey subsequently issued directing U.S. Attorney Taylor to take no action in response to the House’s referral of the matter for legal proceedings. She wrote: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. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.
Speaker Pelosi cited 2 U.S.C. § 194 as the governing statutory language, which states:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required [by] . . . any committee or subcommittee of either House of Congress, . . . it shall be the duty of the . . . Speaker of the House . . . to certify . . . the statement of facts aforesaid under the seal of the . . . House, . . . to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
In Attorney General Mukasey's written response [PDF], issued on February 29, 2008, he asserted that "the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President's claim of executive privilege." The letter also cites Harriet Miers's "constitutional immunity from compelled congressional testimony." The February 29, 2008 letter cites a June 24, 2007 letter that relies on two Office of Legal Counsel opinions by Paul Clement (June 27, 2007) and Steven G. Bradbury (June 10, 2007) for the legal proposition that "the assertion of privilege and immunity were legally proper." [Note: it is unclear how a letter dated June 24, 2007 cites a letter dated June 27, 2007]
In response to Mukasey’s order to take no action, Speaker Pelosi released this statement:
Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.
ACSBlog summarized a Congressional Research Service Report on Congress’s contempt powers. Additional resources from ACS on the proper role of the Department of Justice are available here.
Written By:Jeffrey Smith On March 3, 2008 9:53 AM Written By:Someone On March 3, 2008 10:01 AM
More words, more "we will", more false promises and more lies. How long before they drop the facade that Congress is actually going to do something and just start saying "screw you America, we know what's best so shut up and sit down"?
Mukasey himself is in contempt of Congress and can (and should) be duly charged. Moreover, the sergeant at arms of the house has the authority to enforce the contempt citation himself.
Give Bill Livingood a warrant and have him go arrest the scofflaws.
Maybe this move will rescue Congress from otherwise deplorable approval ratings? Whether it has an impact or not, it's long overdue that the administration has accountability for its behaviors. Take 'em down!
Those who have given Congress a lower rating than Bush (!) forget that Congress's ineffectiveness is generally caused by the Senate Republicans. Their repeated filibusters on bills which the majority in Congress -- and the majority of the American people -- want is what's blocking the passage of these bills by Congress. The Democrat's thin majority does not make up a 3/5 majority as is needed for a successful cloture vote on these filibusters. As a result, much does not get out of the Senate, and therefore out of Congress.
Democrats may have majorities in both houses of the US Congress, but the Senate Republicans are those at fault for Congress's failures.
Thank God the House Rules don't allow filibuster. And thank God we have Nancy Pelosi as Speaker of the House. We may get action by the House on these Contempt of Congress issues, by at least the sergeant-at-arms.
This'll teach the democrats to confirm a guy who won't answer a simple question like "is Waterboarding torture?". The Dem's a wimpy jackasses.
It is about time that Congress do something to bring this lawless administration to justice.