Just ... hold ... it ... back ...

Until the handoff in January 2009 and Georgie can flee to Paraguay...

Washington, D.C. (AHN) - The U.S. Court of Appeals for the District of Columbia has temporarily stayed a ruling requiring top White House aides to comply with a subpoena issued by Congress about allegedly politically-motivated dismissals of federal attorneys.

The Justice Department has been trying to delay a court decision ordering presidential chief of staff Josh Bolten to provide documents, and former White House counsel Harriet Miers to testify before lawmakers about the firings of nine prosecutors in 2006. Both officials refused to comply with subpoenas, citing executive privilege.

Contempt charges passed in the House

Reading the final line of the quote, I get the mental picture of the Bush cabal hunkered down in the White House yelling out the window, "Yer never gonna git me, sheriff! I owns the judge!" (my bold):

WASHINGTON (AP) -- The House Judiciary Committee voted contempt of Congress citations Wednesday against White House Chief of Staff Josh Bolten and President Bush's former legal counselor, Harriet Miers.

The 22-17 party-line vote - which would sanction for pair for failure to comply with subpoenas on the firings of several federal prosecutors - advanced the citation to the full House.

A senior Democratic official who spoke on condition of anonymity said the House itself likely would take up the citations after Congress' August recess. The official declined to speak on the record because no date had been set for the House vote.

Committee Chairman John Conyers said the panel had nothing to lose by advancing the citations because it could not allow presidential aides to flout Congress' authority. Republicans warned that a contempt citation would lose in federal court even if it got that far.

Contempt of Congress

From Wikipedia:

Subpoenas

Congressional rules empower all its standing committees with the authority to compel witnesses to produce testimony and documents for subjects under its jurisdiction. Committee rules may provide for the full Committee to issue a subpoena, or permit subcommittees or the Chairman (acting alone or with the ranking member) to issue subpoenas.

As announced in Wilkinson v. United States, 365 U.S. 399 (1961), the Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee investigation of the broad subject area must be authorized by its Chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area which have been authorized for investigation.

The Court held in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) that Congressional subpoenas are within the scope of the Speech and Debate clause which provides "an absolute bar to judicial interference" with such compulsory process. Under that ruling, Courts generally do not hear motions to quash Congressional subpoenas; even when executive branch officials refuse to comply, the Courts tend to rule that such matters are "political questions" unsuitable for judicial remedy.

Procedures

Following the refusal of a witness to produce documents or to testify, the Committee is entitled to report a resolution of contempt to its parent chamber. A Committee may also cite a person for contempt but not immediately report the resolution to the floor. In the case of subcommittees, they report the resolution of contempt to the full Committee, which then has the option of rejecting it, accepting it but not reporting it to the floor, or accepting it and reporting it to the floor of the chamber for action. On the floor of the House or the Senate, the reported resolution is considered privileged and, if the resolution of contempt is passed, the chamber has several options to enforce its mandate.

Inherent contempt

Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided by the Vice-President of the United States, acting as Senate President), a lawyer who had allowed clients to rip up subpoenaed documents, William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. [1]

MacCracken had filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken, 294 U.S. 125 (1935). [2][3]

Presidential pardons appear not apply to civil contempt procedures like the above, since it is not an "offense against the United States" or an offense against "the dignity of public authority." [4]

And from Answers.com:

Contempt of Congress is any improper attempt to obstruct the legislative process, usually by a refusal to provide information that Congress has requested. The contempt power is critical to Congress's ability to investigate the activities of the executive branch or any issue about which it is considering enacting legislation. Congress can use contempt citations against witnesses who refuse to testify or to produce required evidence. Those found guilty of contempt of Congress may go to prison.

There are three methods of prosecuting for contempt of Congress. First, Congress can try contempt cases itself. In 1848 and 1871 the Senate did just that, imprisoning newspaper reporters in the Capitol for not revealing the source of the Senate secrets they had published. Congress can also turn contempt cases over to the Department of Justice for criminal prosecution. However, juries have often acquitted individuals charged with contempt, especially if it appears that the congressional committee abused its power. For example, between 1950 and 1966 the House Un-American Activities Committee issued 133 contempt citations, but only nine people were convicted. Finally, the Senate or House can also file civil charges of contempt. Using this procedure, a federal judge determines whether a question asked by Congress was legitimate. If the judge orders a witness to answer and the witness refuses, then the witness would be in contempt of court and could be fined or imprisoned.

And Capitol Questions:

Contempt of Congress is initiated by a resolution reported from the affected congressional committee which can cite any individual for contempt. The resolution must then be adopted by the House or Senate. If the relevant chamber adopts the contempt resolution recommended by one of its committees, the matter is referred to a U.S. Attorney for prosecution. The U.S. Attorney may call in a grand jury to decide whether or not to indict and prosecute. If prosecuted by the courts and found guilty of contempt, the punishment is presently set at up to one year in prison and/or up to $1,000 in fines.
[snip]

Contempt resolutions have most often been issued in two categories: (1) for reasons of refusing to testify or failing to provide Congress with requested documents or answers, and (2) bribing or libeling a Member of Congress. Contempt citations are limited to matters which relate to legislative purposes and which fall within the affected committee's established jurisdiction.

Several Supreme Court decisions have upheld the contempt authority of Congress, most notably Anderson v. Dunn, decided in 1821. Congress sets the procedures and punishment for contempt by statute. The current contempt statute (2 USC 192) was adopted in 1857, and has been amended several times over the years. This statute also limits the issuance of contempt citations to matters which relate to legislative purposes and which fall within the affected committee's established jurisdiction as delegated to it by the full House or Senate.

Okay! We're waiting!

Helping us realize what is at stake

John Dean discusses the showdown with Harriet Miers:

By not responding to the subpoena, the President and Ms. Miers all but invited the House Judiciary Committee and, in turn, the House of Representatives to vote to deem her in contempt of Congress. It was a defiant, in-your-face insult to Congress. No president would do this unless he was quite confident of the outcome. Clearly, Bush's White House and Justice Department lawyers believe that the solidly conservative federal judiciary will grant them a favorable ruling, and that, in the process, they will greatly weaken congressional oversight powers, to the advantage of the White House.

In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush's White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress.
[snip]
As a result of Miers's "no show," the full House Judiciary Committee will no doubt support the subcommittee, and vote to deem Miers in contempt. One can only hope - but probably this hope is in vain -- that Republicans may realize this is not a partisan issue, but an institutional matter, and thus will either abstain or vote to support the dignity of the committee on which they serve. Republicans should remember that they will one day be back in control, and may then be confronted by a Democratic president defying their subpoenas - and relying on this very precedent to do so. Realistically, however, there is zero chance that Republicans will place their constitutional interest ahead of their partisan interests.

The House Judiciary Committee itself cannot hold Miers in contempt; rather, the Committee can only report its request that this be done to the full House, which must then vote to deem her in contempt. Before the full House turns to this question, however, its members should not only carefully consider what they are doing, but also consider what they are not doing. At this stage, it is unclear how far this conflict will progress. The White House appears to have given this matter much more thought than Congressional leaders have thus far.

Long ago, Congress should have oiled up its most powerful tool to require Executive cooperation. No one who follows these matters is surprised that Bush is again pushing the envelope of presidential powers. But it continues to mystify me why Congress does not get its act together, and remind the White House that they are constitutional co-equals.

Update 7/17: Steve Bates of The Yellow Doggerel Democrat catches another viewpoint which is less scary:

The always essential Crooks and Liars supplies video of Keith Olbermann's interview with constitutional law professor Jonathan Turley, who sees matters quite differently: reminding us that Congress has the power to try individuals for contempt directly, bringing them before Congress rather than the courts, Turley sees the Bush administration's approach as extremely foolish. Maybe no one told Gonzo or John Yoo or even Dick Cheney about that congressional power?

When you make a threat

You must always follow through. We expect you to go all ninja on her ass. Please.

Chairman of the House Judiciary Committee John Conyers (D-MI) warned Harriet Miers' attorney today that the former White House counsel will risk contempt proceedings unless she complies with a committee-issued subpoena for testimony.

Miers was supposed to testify before a Judiciary subcommittee yesterday on the US attorney firings, but she did not appear after a White House attorney instructed her to stay home. The White House claims that executive privilege cloaks Miers from testifying

As a lawyer and a momentary Supreme Court nominee, I would have thought Miers would have had more respect for ... you know... the law.

This should be interesting

We get to hear from good ol' Mash Notes Harriet Miers again:

WASHINGTON -- Two former senior White House officials were subpoenaed by congressional committees today in an escalation of the investigation into the firing of eight U.S. attorneys last year.

The House Judiciary Committee issued a subpoena to former White House Counsel Harriet E. Miers, and the Senate Judiciary Committee subpoenaed Sara Taylor, who formerly was the White House political affairs director. The subpoena to Taylor directs her to appear for questioning July 11; Miers' testimony is being sought on July 12.

Just think of the fun we're missing because she didn't get to be on the Supreme Court...

If you are innocent, you have nothing to fear

Bryan at Why Now? reminds us the right wing using this phrase to forcefeed us the gutting of the Bill of Rights and other invasions of privacy, but he points out that this phrase is not being used much in reference to putting Karl Rove and Harriet Miers under oath.

Gee.. I wonder why....

I know you are but what am I?

Or the best one: I'm rubber, you're glue, whatever you say bounces off me and sticks on you!

George W. Bush, Dick Cheney and their neoconservative aides enjoy few things more than throwing back words in the faces of their political enemies, what is known as “hoisting them on their own petard.”

That’s why President Bush jabbed back at the “realists” on the Iraq Study Group by dismissing their idea of a phased military withdrawal with the riposte, “this business about graceful exit just simply has no realism to it whatsoever.” See, the “realists” had “no realism.”

Similarly, Vice President Cheney – the purveyor of every Iraq War myth ever devised by the administration, from Saddam Hussein’s supposed role in 9/11 to his “reconstituted” nuclear program to the insurgency’s “last throes” – has accused his opponents of spreading “myths” about Iraq.

Update: Digby at Hullabaloo:

The problem is not that the Bush's are unusually bad at governance, although they are. It's that the Republicans seem to have created a con game in which they take power, steal the country blind, allow their craziest ideologues to wildly experiment with theories that only radical fringers think have a remote possibility of success and basically run amuck until they are forced to stop. Then they harrass the Democrats as they clean up the mess, setting themselves up for a resurgence by making it very clear that unless they are given another chance to mess things up they will make the political system even more ugly than it already is.

It's the political equivalent of a toddler throwing a tantrum in the grocery store. You get to the point where you give them the candy bar just to shut them up, which is a big part of why Junior Codpiece came close enough to steal the election in 2000 and why the media and political establishment jumped on their bandwagon when they did it. Everyone knew that if the Republicans were not allowed to take power in 2000 there would be hell to pay.

Incompetence has nothing to do with it. In fact, they are quite competent at doing exactly what they want to do --- gain power, do whatever they want for a few years, lose office, harrass Democrats rinse, repeat.

Update: TRex of Firedoglake talks about evading responsibility and Gonzales' use of the passive voice:

What I personally believe went down is that Dubya told Harriet and Gonzo "Get rid of any Attorneys who aren't playing ball, but keep me out of it. And if you can find a way to rid me of this meddlesome Fitz…" I think the "Let's fire everybody!" opening move was a smokescreen, for the purpose of making the eight firings look like a show of restraint. And Gonzo's claim to not know what was going on is laughable. No-one fires eight US Attorneys without checking with the boss man.

When neocons end up using 'Well, Clinton did it' as an excuse

You know it's getting a bit desperate.

Josh Marshall:

First, we now know — or at least the White House is trying to tell us — that they considered firing all the US Attorneys at the beginning of Bush’s second term. That would have been unprecedented but not an abuse of power in itself. The issue here is why these US Attorneys were fired and the fact that the White House intended to replace them with US Attorneys not confirmed by the senate. We now have abundant evidence that they were fired for not sufficiently politicizing their offices, for not indicting enough Democrats on bogus charges or for too aggressively going after Republicans. (Remember, Carol Lam is still the big story here.) We also now know that the top leadership of the Justice Department lied both to the public and to Congress about why the firing took place. As an added bonus we know the whole plan was hatched at the White House with the direct involvement of the president.

And Clinton? Every new president appoints new US Attorneys. That always happens. Always…. The whole thing is silly. But a lot of reporters on the news are already falling for it. The issue here is why these US Attorneys were fired — a) because they weren’t pursuing a GOP agenda of indicting Democrats, that’s a miscarriage of justice, and b) because they lied to Congress about why it happened.

And there's an email:

...to Harriet Miers on Jan. 9, Attorney General Alberto Gonzales’s chief of staff Kyle Sampson (who resigned yesterday) admitted that the Clinton administration never purged its U.S. attorneys in the middle of their terms, explicitly stating, “In recent memory, during the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace U.S. Attorneys to serve indefinitely under the holdover provision”

Aren't you glad Harriet Miers

Didn't get to the Supreme Court?

Harriet Miers is nothing if not loyal to her bestest buddy Bush: (my bold)

Sampson sent an e-mail to Miers in March 2005 that ranked all 93 U.S. attorneys. Strong performers "exhibited loyalty" to the administration; low performers were "weak U.S. attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc." A third group merited no opinion.

At least a dozen prosecutors were on a "target list" to be fired at one time or another, the e-mails show.

Only three of those eventually fired were given low rankings: Margaret Chiara in Grand Rapids, Mich.; Bud Cummins in Little Rock; and Carol S. Lam in San Diego. Two were given strong evaluations: David C. Iglesias in Albuquerque, who has alleged political interference from GOP lawmakers, and Kevin V. Ryan in San Francisco, whose firing has generated few complaints because of widespread management and morale problems in his office.

Update: TPM Muckraker has the timeline.

Update: Res Ipsa Loquitur at Rising Hegemon notes:

... in December 2005, Specter's chief counsel "slipped a provision into the Patriot Act reauthorization bill that made it possible to replace U.S. Attorneys permanently without Senate confirmation."

Am I supposed to think that Specter didn't know what was going on? That his chief counsel, who, I assume, he supervises, just happened to make it easier for the administration to can U.S. Attorneys the administration thought unfriendly to their great and glorious Republican revolution? Was Specter negligent? Is he stupid -- or does he merely think I am stupid?

The Attorney General is not the only one with some explaining to do.

The purge of US Attorneys goes straight into the White House

Josh Marshall says:

As has happened so many times in the last six years, the maximal version of this story -- which seemed logical six weeks ago but which I couldn't get myself to believe -- turns out to be true. Indeed, it's worse. We now know that Gonzales, McNulty and Moschella each lied to Congress. We know that the purge was a plan that began at the White House -- and it was overseen by two of President Bush's closest lieutenants in Washington -- Miers and Gonzales. Sampson is the second resignation. There will certainly be more.

And remember this key point: The document dump is meant to get bad news out of the way fast. But it's always a hedge. It never includes the really bad stuff. And if you're not in absolute crisis mode, ya' never do it on a Monday.

Following up on the firing of the prosecutors

With a promise:

Sen. Chuck Schumer (D-NY), speaking on the Senate floor this afternoon, vowed to "get to the bottom" of the administration's December purge of federal prosecutors, and said that if they found that the prosecutors had indeed received positive job evaluations from the Justice Department before being booted, "there will be real trouble."

Update:

Justice Department officials have said that because United States attorneys are presidential appointees they may be replaced at any time without a specific reason, although they have said that none were removed for pursuing politically sensitive cases.

Another United States attorney asked to resign was Carol C. Lam of San Diego, who departed on Thursday at the request of the Justice Department. Two days earlier, Ms. Lam announced two indictments, including one against a former high-ranking Central Intelligence Agency official, in a corruption inquiry that began with last year’s guilty plea by a former Republican representative, Randy Cunningham, who was sentenced to more than eight years in prison.

And earlier in the article:

WASHINGTON, Feb. 15 — A United States attorney in Arkansas who was dismissed from his job last year by the Justice Department was ousted after Harriet E. Miers, the former White House counsel, intervened on behalf of the man who replaced him, according to Congressional aides briefed on the matter.

Ms. Miers, the aides said, phoned an aide to Attorney General Alberto R. Gonzales suggesting the appointment of J. Timothy Griffin, a former military and civilian prosecutor who was a political director for the Republican National Committee and a deputy to Karl Rove, the White House political adviser.

Later, the incumbent United States attorney, H. E. Cummins III, was removed without explanation and replaced on an interim basis by Mr. Griffin. Officials at the White House and Justice Department declined to comment on Ms. Miers’s role in the matter.