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The Consortium Report
The Consortium Report
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Judge Rules Miers Must Testify
(But What About Rove?)


by addiestan, The Media Consortium: Thu., Jul 31, 2008
Filed under: Congressional Oversight

According to one legal scholar, it may be time to dust off that jail cell in the House of Representatives — perhaps even for Karl Rove, who yesterday earned the recommendation of the House Judiciary Committee for a contempt of Congress citation. (Rove decided to take a little vacation outside the U.S. of A. on the day he was scheduled, by subpoena, to testify before the committee.)

Today a federal judge ruled that there is no legal basis for the Bush administration’s refusal to allow Joshua Bolten, the president’s chief of staff, and Harriet Miers, former White House counsel and deputy chief of staff, to comply with a subpoena from a congressional committee demanding documents and testimony. The reasoning in Bates’ decision would seem to apply to Rove, as well.

Judge John Bates, who ruled in the administration’s favor in the Valerie Plame matter, wrote that there is no legal basis for the administration’s claim of executive privilege in withholding documents and testimony sought by subpoena by the House Judiciary Committee in the controversial firings of nine U.S. attorneys. He ruled that both Miers and Bolten must turn over the subpoenaed documents, and that Miers must appear before the committee.

As my colleague Brian Beutler reported in April, the unprecedented civil court case generating Bates’s ruling stemmed from the refusal of Attorney General Michael Mukasey to enforce contempt of Congress citations against Bolten and Miers when they defied the committee’s subpoena:

Attorney General Michael Mukasey recently blocked the Department of Justice from prosecuting criminal contempt of Congress citations against White House staff…Generally speaking, when the full House votes to issue statutory contempt citations against individuals who impede congressional investigations, the criminal charges are referred to, and prosecuted by, the Justice Department. But the DOJ, like all executive branch agencies, is ultimately controlled by the president and his appointees, and this time around, with current and former federal officials under the microscope, the White House is refusing to abide by the game’s traditional rules. The attempt by the House Judiciary Committee to have its case heard in civil court — which does not require action by DOJ — marks a departure from past practice, but one that, if decided by Judge John D. Bates of the U.S. District Court, would provide Congress with a new recourse in any future attempt by the executive branch to stymie congressional oversight prerogatives.

Today, I went back to Jonathan Turley, law professor and constitutional scholar to George Washington University Law School — one of the experts Beutler talked to in initial story on the case.

“First of all,” Turley said, “the decision from Judge Bates puts into sharp relief the contempt by the Bush administration of legitimate legislative authority. It most clearly contradicts the views of Attorney General Mukasey. Many of us were astounded by Mukasey’s refusal to let a grand jury see the evidence of criminal contempt by administration officials.”

The role of the Justice Department in enforcing contempt of Congress citations, Turley explained, stems from a tacit understanding arrived at between the executive and legislative branches that Congress would suspend its use of its “inherent contempt” authority if the Justice Department “that it would be a faithful conduit for these allegations to be brought into the judicial branch.” Under inherent contempt authority, the House can summon the sergeant at arms to arrest anyone defying a congressional subpoena and hold him or her in a jail cell in the U.S. Capitol building.

In light of today’s ruling, Turley said, the first thing Congress should do is “dash off an immediate letter to Mukasey, demanding that he reconsider his past position on these contempt cases, and to further demand that he comply with the ruling of a respected and neutral judge.”

If that doesn’t work, Turley said, it might be time to put that jail cell to use. “If Mukasey refuses to act,” said Turley, “then Congress needs to seriously consider reactivating its inherent contempt authority. It currently has that authority; it needs only to use it.”

As attractive an idea as that may be, it ’s not without its perils. As Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress, explained to Beutler last April, those so arrested have the right to petition for habeas corpus, which would take a while to settle. I’m currently awaiting comment from the House Judiciary Committee.

Although today’s ruling covers only the contempt citations against Bolten and Miers, the reasoning used by the judge would seem to apply to Karl Rove, as well. Rove was subpoenaed to appear before the committee on July 10 to answer questions about his role in the prosecution of Don Siegelman, the Democratic former governor or Alabama. “Rove’s act of contempt is perhaps the most obvious and extreme,” Turley said. “He virtually fled the jurisdiction to avoid testifying.” And, Turley added, the nature of his former position in the White House — as the president’s deputy chief of staff and go-to guy for politics — made his claims “never particularly credible. ”

However encouraging Judge Bates’ ruling is to those who wish to see congressional authority restored, the administration does still have a right to appeal. As for Rove, no vote to charge him with contempt of Congress will take place on the floor of the House until at least September.

“From the beginning, it was clear that the Justice Department was relying more on the calendar than he Constitution in these cases,” Turley said. “It was clearly gaming the system to try to delay any court ruling before the end of the administration when the issue would likely be treated as moot.”

When Mukasey was nominated as the replace for Alberto Gonzales, many expected a less politicized Justice Department from a man known for his prosecution of terrorism cases in New York. “So far, his record has been virtually indistinguishable from Alberto Gonzales’ record.,” Turley said. “Indeed, in some ways, Mukasey is worse because he did not cut as much as a sycophantic image. “

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