House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said the contempt motion could be brought to the House floor “as early as next week,” but Democratic leadership aides cautioned that Speaker Nancy Pelosi (D-Calif.) has not yet made any final decision on a vote. And one House aide close to the situaton said a vote was "more likely" in two weeks.
If a criminal contempt resolution were approved against Miers and Bolten, it would represent a dramatic escalation in the battle between the White House and Congress over the extent of executive privilege and the president’s right to shield senior aides from Congress.
Several Democratic lawmakers, speaking on the condition of anonymity, said they had been “whipped” on the contempt issue in the last several days, and all said they would back the measure if it came to the floor.
Rep. Brad Miller (D-N.C.) was asked by the leadership to conduct the “informal” whip count, said one Democratic insider. But the congressman could not be reached for comment.
Democratic leadership aides said Pelosi would be able to round up the 218 votes needed to push through the resolution from Democrats alone, and assumed that no Republicans would cross the aisle and buck the White House.
The speaker has publicly stated she’ll take whatever steps are needed to enforce the subpoenas, but Democrats have moved slowly in seeking a constitutional confrontation with President Bush over the extent of his executive authority.
The Judiciary Committee subpoenaed Miers and Bolten on June 13. Committee Democrats want to question Miers, now back in private practice in Dallas, on the role of the White House in the sacking of nine U.S. attorneys last year. Bolten was subpoenaed as the official custodian of internal White House documents related to the prosecutor purge.
After Miers and Bolten refused to show up for a July 12 hearing, citing executive privilege, the Judiciary Committee approved a contempt resolution against them, but Pelosi has not yet brought the measure to the floor for a vote of the full House.
The Senate Judiciary Committee has encountered a similar refusal to persuade top White House officials to respond it subpoenas, including former White House Deputy Chief of Staff Karl Rove, who was the president’s top political adviser.
“We have to do something,” insisted Conyers, pointing out that his House panel had issued a valid subpoena that should be enforced. Otherwise, he said, the Congress would be severely hampered in its ability to conduct effective oversight over the executive branch.
Conyers said the contempt battle was not aimed at seeking criminal sanctions against Bolten and Miers personally, but would nonetheless surely spark a long legal fight over the reach of executive privilege.
“Remember — no handcuffs,” Conyers said in an interview Thursday, noting that contempt of Congress is a misdemeanor.
Conyers said he’s been negotiating with White House Counsel Fred Fielding to reach a compromise, but so far to no avail.
Former Attorney General Alberto Gonzales, who resigned in the wake of the prosecutor purge, had warned that he would prevent the U.S. attorney for the District of Columbia, Jeffrey Taylor, from going to court to enforce any contempt resolution against high-ranking White House officials.
But Michael Mukasey, the former federal judge nominated by Bush to replace Gonzales, told the Senate Judiciary Committee that he would only allow a court challenge to go forward if he believed the executive privilege claim were “unreasonable.”
Mukasey also ignaled that a legal battle between the executive and legislative branches wasn’t a fight he was eager to wade into.
“I hope and pray for a lot of things," he said, “and one of them is that I won't have to make that decision.”
UPDATE: At the White House Friday, Deputy Press Secretary Tony Fratto chastised congressional Democrats for wasting “precious time on futile political stunts instead of getting their business done.”
“This Congress is setting records for inaction and diversion,” Fratto said. “They still haven't sent a single appropriations bill – the first time in at least 20 years. The House hasn't even named conferees.”
And next week, Fratto charged, that Senate Majority Leader Harry Reid (D-Nev.) was “going to waste the entire week debating” an expansion of the State Children’s Health Insurance Program that “they know will be vetoed and sustained.”