The Consortium Report
A project of The Media Consortium

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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John Yoo’s Attempt to Discredit a Critic

by Brian Beutler, The Media Consortium: Mon., Jun 30, 2008
Filed under: House Judiciary Committee Reports

Last week’s House Judiciary subcommittee hearing, which featured special guests John Yoo and David Addington, drew a lot of attention for its rhetorical bombshells (Chairman Conyers: Could the president order a suspect buried alive?) and the tense back and forth between the witnesses and Democrats on the bench. But Addington and Yoo are both long-time lawyers–lawyers for politicians, no less–and as such their testimony revealed much, much less about the Bush administration’s torture regime than many hoped it would.

However, there was this peculiar exchange between Yoo and Rep. Steve King (R-Iowa), on the subject of author Philippe Sands’ new book, Torture Team which contains a number of startling revelations about the administration’s abandonment of the eighth amendment.

Yoo: Sir, I haven’t read the book. I did read Mr. Sands’ testimony before this committee, and I noticed in the testimony he said that he had interviewed me for the book. And I can say that he did not interview me for the book. He asked me for an interview and I declined. So I didn’t quite understand why he would tell the committee that he had actually interviewed me.

King: And with that answer, Professor Yoo then, I’m going to interpret that to mean that at least with regard to that statement that he had interviewed you, you find that to be a false statement, and that would perhaps reflect on the veracity of the balance of the book.

Yoo: I can’t tell what else is in the book, but I don’t understand why he would say that he interviewed me for the book. I can tell the committee that he contacted me once. He wanted to interview me for the book and I said I don’t want to talk to you. I wrote my own book, you can look at my own book. Everything I have to say is in my book. And then he told the committee that he’d interviewed me.

The idea, of course, is that someone who hates America so much that he’s willing to fabricate all sorts of untrue allegations about Yoo (and, perhaps, other administration veterans) is not to be believed. When I heard this interchange, though, I emailed Sands and asked him to clear the air. He was fairly unambiguous: “I never claimed to have interviewed him! As set out in my book: we debated. ” So who’s telling the truth?

Well, Yoo’s right about approximately one thing: Sands did testify before the very same House panel, on May 6 of this year. But that’s about the extent of it. In his prepared remarks, Sands submits that, “[o]ver hundreds of hours I conversed or debated with many of those most deeply involved. They included… the Deputy Assistant Attorney General at DoJ (Mr Yoo).” [Emphasis mine.]

You can read, as Yoo did, for yourself. Or you can watch, starting about 2 min 45 sec into the video.
And, indeed, Yoo and Sands did debate each other in October 2005. You can listen to that debate in full if you follow this link. One hesitates to throw the word perjury around (maybe Yoo… misread… Sands’ testimony). But it is safe to say that the goal here was to discredit a critic who’s brought to light a great deal of damning information about the Bush administration and its allies.

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House Passes FISA

by Brian Beutler, The Media Consortium: Fri., Jun 20, 2008
Filed under: Congressional Oversight

The FISA Amendments Act of 2008 passed moments ago in the House by a vote of 293-129.

Joining the significant majority were House Speaker Nancy Pelosi, House Majority Leader Steny Hoyer, and House Intelligence Committee Chairman Silveste Reyes. An angry John Conyers, chairman of the House Judiciary Committee, opposed it.

The bill will in practice provide legal immunity to telecommunications companies that participated in the President Bush’s Terrorist Surveillance Program (TSP) through a provision that will result in the dismissal of lawsuits that might have shined some light on the particulars of the administration’s warrantless wiretapping activities. It does mandate an inspector general report on the particulars of TSP, but whether that mandate survives the president’s signing-statement pen remains to be seen.

During the floor debate, most of Democrats who supported the legislation pointed to a provision that makes FISA the exclusive arbiter of the nation’s wiretapping activities — a provision that will allow the supporters of the bill to express their shock and disappointment when this or any future president decides to ignore the law anyhow.

Now the bill moves over to the Senate where all of these, and other provisions will be debated further.

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A Constitutional Conundrum

by Brian Beutler, The Media Consortium: Wed., Apr 23, 2008
Filed under: Congressional Oversight

With Justice denied and Congress defied by the Bush administration, the House does the civil thing — possibly changing the shape of government power for years to come. Or not.

Overshadowed by a heated presidential election battle and daily news of a sinking economy, a law suit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C., challenging the Bush administration’s attempt to flout contempt of Congress charges against one current and one former aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without relying on the good will of one of the executive’s most powerful agencies, the Department of Justice (DoJ).

As recent events have shown, that good will isn’t always forthcoming. Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations against White House staff, pushing the House of Representatives down a path that, wherever it leads, will set a legal precedent — and could possibly make it more difficult for future presidents to defy the will of Congress. Earlier this month, the House Judiciary Committee filed a >motion (PDF file) against current and former Bush administration figures in civil court, with the limited aims of securing testimony and documents from White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. Both Bolten and Miers, acting on White House orders, have refused to comply with the committee’s subpoenas.

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.

Many administration critics, particularly in the blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as “inherent contempt” — an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House Sergeant at Arms.

“There is something of a sense that it is not productive for Congress to use its inherent contempt power,” explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. “It’s just too unwieldy and too untried to be used in the modern era.”

In fact, in the motion currently before the district court, the Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date, after the expected petitioning of the court by the defendants for habeas corpus.

The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, and prompted months-long investigations by both congressional bodies — investigations the White House has done its best to thwart. In June, when the House Judiciary Committee issued subpoenas for documents and testimony from Bolten and Miers, the White House claimed a sweeping executive privilege over the information and barred the two from complying. The House responded in kind, voting on February 14 of this year to pursue criminal contempt charges against the aides — a move that White House spokesperson Dana Perino termed “a partisan, futile act”, and one, she said, that the Justice Department would not enforce.

In this, at least, the administration was true to its word: Jeffrey Taylor, U.S. Attorney for the District of Columbia, acted on the orders of the very White House that appointed him and refused to take up the case.

“This is a surprising obstruction of the process by [the administration],” said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. “Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege.”

The Judiciary Committee is seeking a fairly narrow ruling from Judge Bates — one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and therein lies the possibility exists that the White House could prevail despite experts’ view of its weak legal standing. Last year, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service (CRS) released a report that assessed the legal landscape on which a civil suit by a congressional committee would play. “[T]here is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders,” the CRS found.

“The problem with going to court is that you risk a negative precedent,” explained Turley. And it’s a risk for both sides: On one level, Bates could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently. But if he doesn’t throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed by the losing side to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.

Were the Judiciary Committee to be rebuffed, it would likely pursue as fast-moving an appeal as possible. The White House, by contrast, would be inclined to slow things down. “If the court agrees [with Congress], I suspect the White House will file an appeal…[based] on the calendar — not the issue,” said Turley. “I doubt Mukasey and the DoJ believe they have a case, but [the administration will be] simply trying to run out the clock.” Judge Bates has scheduled arguments to begin in the case on June 23.

If appeals have not been exhausted when this session of Congress ends in December, the defendants could plausibly contend that the subpoenas have expired, and that the matter should be closed, or at least readdressed from the start when the new Congress is seated (and a new White House has been staffed) in January, 2009. Not only would that let the Bush administration largely off the hook; it would leave the question of the legitimate scope of executive privilege unresolved.

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The FISA Saga Continues

by Brian Beutler, The Media Consortium: Tue., Feb 12, 2008
Filed under: Congressional Oversight

The vote just came down. The FISA Amendments Act passed 68-29. What follows will no doubt be a grueling battle in a conference committee between the House and the Senate. Among those on hand will (most likely) be the chairmen of the four committees (the Senate and House Judiciary and Intelligence committees) with jurisdiction over FISA, three of whom are philosophically much closer to the House bill than the Senate bill. At that conference, for all intents and purposes, one of several things can happen: The senators will accept the House language (unlikely), the representatives will adopt the Senate language (slightly more likely) or a new bill, using language from both bills, will emerge (quite likely). That bill would have to be passed by both houses.

The problem is that getting a Senate-like bill through the House will be much easier than getting a House-like bill through the Senate–According to Senate Minority Leader Mitch McConnell, 21 Blue Dog Democrats have sent a letter to Speaker Pelosi endorsing the Senate bill. House leadership can stick to its guns and say “no way” to the radical Senate provisions, but time is running out on the 15-day extension to the old amendments, and doing nothing will touch off the sort of national security fight that Democrats have been avoiding for the entirety of the 110th Congress. Unless they find that willingness, it looks very much as if a fairly terrible piece of legislation will ultimately be signed into law.

There are a few positive developments. House Judiciary Committee chairman John Conyers has sent White House Counsel Fred Fielding a letter saying that the documents the administration has provided thus far do not justify retroactive immunity.

I am writing to follow up on previous letters and requests of January 5, 2006, February 8, 2006, July 30, 2007, September 11, 2007, October 15, 2007, and October 16, 2007, requesting information and documents from this Administration concerning the warrantless surveillance program, known as the terrorist surveillance program (TSP), first disclosed by the New York Times on December 16, 2005, and related matters. Although some of the requested materials have been provided to some Judiciary Committee members, much of the information has not, and it is crucial that this material be produced as promptly as possible so that Congress may fulfill its legislative and oversight responsibilities. Indeed, review and consideration of the documents and briefings provided so far leads me to conclude that there is no basis for the broad telecommunications company amnesty provisions advocated by the Administration and contained in the Foreign Intelligence Surveillance Act (FISA) bill being considered today in the Senate, and that these materials raise more questions than they answer on the issue of amnesty for telecommunications providers. In order to more fully understand and react to the Administration’s request for broad-based and retroactive amnesty for telecommunications firms, who may be in a position to divulge information concerning misconduct by Administration officials, it is imperative that your provide this information to us as promptly as possible, as we have been asking for many months on numerous occasions.

Additionally, Senate Judiciary Committee Chairman Patrick Leahy seems to be extremely upset about the treatment he and his committee have received from Intelligence Chair Jay Rockefeller and the Republican leadership–and as such he also have come into full support of Chris Dodd and Russell Feingold’s efforts. He will likely be part of the conference committee. Meanwhile, Dodd himself has indicated that he’ll filibuster any bill that emerges from the conference committee if it contains the immunity provision. So there’s plenty more to come.

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Wiretapping Returns

by Brian Beutler, The Media Consortium: Fri., Sep 7, 2007
Filed under: House Judiciary Committee Reports

House Democrats went limping into August recess, having watched a president with historically low public support nonetheless cram his surveillance agenda past them. At Speaker Nancy Pelosi’s behest, the Judiciary Committee made rejoining the battle its first order of business upon returning this week. It remains unclear, however, whether they’ve come to the fight too late.

As Congress approached the end of session late in July, Democrats faced a major dilemma: pass the president’s surveillance agenda, or leave for recess before reaching any agreement at all and suffer a month of political attacks at the hands of Republicans. By the time Congress began debating the issue in earnest, the rhetoric had already escalated. In a weekly radio address given late in July, President Bush contended that, “every day that Congress puts off these reforms increases the danger to our nation.”
Read the full report…

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