Top GOP leadership and Judiciary Committee staff held a strategy session Tuesday to discuss targeting conservative Democrats — especially those who represent Republican-friendly districts — with floor speeches, private lobbying and other efforts, if Democrats proceed with plans to hold top White House officials in contempt, according to participants in the meeting. Republicans called the emergency session after learning top Democrats were privately asking their members if they should force votes to hold White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers in contempt for failing to provide testimony as part of congressional investigations.
Democratic leaders also circulated a “whip question” to the members of their caucus, asking if they would support the contempt resolution — and the e-mail fell into GOP hands.
“A vote for these resolutions would direct the speaker to refer the criminal contempt charges to the U.S. attorney for the District of Columbia, who is required by law to present them to a grand jury,” the Democratic document said.
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.
Republicans are not convinced Speaker Nancy Pelosi (D-Calif.) and Democratic leaders will force a legal showdown over the twin issues of executive privilege and whether top aides to President Bush can be subpoenaed to testify before Congress, arguing that a Democrat-controlled Congress, and future Democratic presidents, would have too much to lose from such a confrontation.
In addition, GOP insiders believe that the uproar over the firing of nine U.S. attorneys last year, and the resulting congressional probe of the prosecutor purge, has not yielded any proof of criminal behavior within the Justice Department or the White House, although they acknowledge that it was a political disaster for the Bush administration. Former Attorney General Alberto Gonzales and a number of his top aides resigned from the Justice Department amid the public outcry over the firings, and Democrats have continued to investigate the Bush administration’s “politicization” of the department, including a House Judiciary Committee hearing Tuesday on the Justice Department’s Civil Rights Division.
Democratic aides said a vote could come as early as next week. Pelosi’s office said no final decision has been made yet on whether there will actually be a vote or when it will take place if it does happen. The Judiciary Committee approved the contempt resolutions against Bolten and Miers back on July 25, but no further action has been taken since then.
Democratic leaders have begun privately whipping members to see if they would back such a resolution, and Democratic lawyers are trying to determine what would happen if the measure were approved by the House. While Democratic aides said that the overwhelming majority of lawmakers on their side of the aisle would vote for the criminal contempt resolution against Bolten and Miers, GOP aides said that moderate and conservative Democrats may rethink that position once Republicans begin hammering them on the topic.
“We’re planning for a very well-coordinated PR offensive if they actually do bring this up,” said Brian Kennedy, spokesman for Minority Leader John A. Boehner (R-Ohio).
Republicans see major flaws in the Democratic arguments for a contempt vote, including the risk of losing any cort battle with the Bush administration over the issue of executive privilege.
“This is a reckless gamble, as it relates to the integrity of this Congress and the authority of future Congresses,” Kennedy said. A loss in a court fight with the White House — in this case, over Bush’s refusal to allow current and former aides such as Bolten, Miers and Karl Rove to testify or turn over internal White House documents related to the prosecutor firings — could well extend the right of future presidents to claim executive privilege when shielding their actions from Congress.
In addition, Republican leaders and members of the Judiciary Committee continue to argue, as the White House and Justice Department have, that there was “no criminal behavior” in the firings.
“While it was a nightmare, there has been no credible allegation of a criminal act committed by anyone,” said a GOP leadership aide, who added that the Democrats’ case was “built on hearsay and conjecture.”
Republicans will also claim that Democrats should not divert congressional attention from pressing legislative matters, such as the 2008 spending bills or energy reform, in order to pursue a political, divisive fight with Bush.
“Both parties stand to lose here, and so do the both the executive and legislative branches,” said one Republican aide close to the issue. “It’s really a huge problem if this moves forward and the House approves a contempt resolution.”
But House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) has been arguing both publicly and privately that the House must take up the contempt resolution or risk serious erosion in Congress’ ability to conduct effective oversight of the executive branch.
Democrats have also been playing up comments by former Attorney General Dick Thornburgh to the House Judiciary Committee last week. Thornburgh, who served as attorney general under Presidents Reagan and George H.W. Bush, slammed the Justice Department for “selective prosecution” of corruption cases involving state and local Democrats.
“The citizens of the United States must have confidence that the department is conducting itself in a fair and impartial” manner, “without actual political influence or the appearance of political influence.
Unfortunately, that may no longer be the case,” Thornburgh said.
However, it is still unclear at this time whether the House could even get to federal court on the matter, since the Justice Department may block Jeffrey A. Taylor, the U.S. attorney for the District of Columbia, who would represent Congress, from even moving forward with the case.
Solicitor General Paul Clement, in a June 27 letter to Bush evaluating the House and Senate subpoenas, said Justice Department officials believe “that Congress’ interests in the documents and related testimony would not be sufficient to override an executive privilege claim.”
Relying on this opinion, which was produced by the Justice Department’s Office of Legal Counsel, Gonzales had warned that he would not allow Taylor to bring a case against the Bush administration.
Former federal judge and current attorney general nominee Michael Mukasey, who was asked about the controversy during his recent confirmation hearings, declined to take a position one way or another, adding: “I hope and pray for a lot of things, and one of them is that I won’t have to make that decision.”
The Senate Judiciary Committee has encountered a similar refusal to persuade top White House officials to respond to subpoenas, including former White House Deputy Chief of Staff Rove, who was the president’s top political adviser.