Lawyers for the House Judiciary Committee compared President Bush to the late President Richard Nixon in a legal motion filed today in federal court, as part of their civil contempt lawsuit against White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers for failing to comply with panel subpoenas. The subpoenas were issued as part of the committee’s probe into the firing of nine U.S. attorneys in 2006.
“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,’ said House General Counsel Irv Nathan and other House lawyers in their 45-page motion.
Original DVD cover.
Let’s call this Executive-privilege-claim-doesn’t-hold-watergate.
“During the course of the Investigation, Harriet Miers, a private citizen and former counsel to the president, asserted that a president’s mere request that she not even appear to testify before, and produce documents to, the committee is enough to bestow absolute immunity upon her from a validly issued congressional subpoena. Similarly, Joshua Bolten contended that, as White House chief of staff, he is ‘absolutely immune’ from congressional process and thus is not required to comply in any manner with a committee subpoena for documents. These extraordinary and wholly unsupportable claims flout established law and suggest a return to the long-since discredited executive mantra of, ‘When the president does it, that means that it is not illegal.’”
That quote is taken from an interview Nixon did with TV interviewer David Frost in 1977, three years after the Watergate scandal had forced him to resign the presidency.
Relying on a claim of executive privilege, Bush has declined to allow House and Senate Democrats to question Miers and former White House Deputy Chief of Staff Karl Rove, or allow Bolten to turn over any internal White House documents related to the prosecutor purge. The House approved a criminal contempt motion against Bolten and Miers, but Attorney General Michael Mukasey, citing earlier Justice Dept. legal opinions, has declined to allow federal prosecutors to bring that case to a grand jury.
The House Judiciary Committee responded by filing a civil contempt suit against Bolten and Miers, and House lawyers sought expedited consideration of the case in order to make sure the case is decided before Bush leaves office next year.
From the AP via Yahoo:
The legal filing came in lawsuit that pits the legislative branch against the executive in a fight over a president’s powers.
The committee is seeking the testimony as it tries to make a case that the White House directed the firing of nine U.S. attorneys because they were not supportive enough of Republicans’ political agenda.
The White House says such information is private and covered by executive privilege, the doctrine intended to protect the confidentiality of presidential communications.
House lawyers told U.S. District Judge John D. Bates that subpoenaed White House officials cannot simply skip hearings as Miers did during the committee’s investigation. Further, they said, any documents or testimony believed to be covered by the privilege must be itemized for Congress’ assessment.
Executive privilege is not a right spelled out in the Constitution, so the legal issues are murky and disputes are normally resolved politically. The suit is risky for both sides. Courts have not been kind to the presidency in fights over subpoenas; Congress could have its power to demand information curtailed permanently.
The White House has said Bush was not personally involved in deciding which U.S. prosecutors to fire and that any White House communications on the matter are off-limits under the privilege. Presidential counsel Fred Fielding declared Miers and Bolten immune from prosecution because their refusal to comply with the subpoenas was done at the White House’s direction under the privilege.
He also did not provide a privilege log, arguing that revealing the information sought would compromise the president’s access to candid advice.
The House in February voted 223-32 to hold Bolten and Miers in contempt. Most Republicans boycotted the vote. House Speaker Nancy Pelosi, D-Calif., asked Attorney General Michael Mukasey to refer the matter to a federal prosecutor. Mukasey refused and the committee sued on March 10.
The committee’s top Republican, Rep. Lamar Smith, said it found no evidence of wrongdoing by the administration in the firings after a nine-month investigation, so House Democrats “will be hard pressed to prove an urgent need for the information and testimony requested.”
House Democrats say the record reveals numerous questionable or outright false statements to Congress and the public by other members of the administration, including purported reasons for seeking the forced resignations and the scope of White House involvement.
They say that executive privilege does not cover documents whose contents are widely known, previously released or that were the subject of extensive, previously authorized testimony.