As expected, Attorney General Michael Mukasey refused Friday to refer congressional contempt citations against President Bush's Chief of Staff Josh Bolten and the president's former counsel, Harriet Miers, to a federal grand jury, claiming that the officials did not commit a crime when they refused to testify before Congress.
The move sets the stage for a historic legal showdown between Congress and the White House over President Bush's far-reaching claims of executive privilege, an issue that will ultimately be decided by the courts and could have long lasting implications for future administrations.
"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote in a letter Friday to Democratic House Speaker Nancy Pelosi.
Pelosi responded swiftly, stating in a news release that she has given the Judiciary Committee authority to file lawsuits against Bolten and Miers in federal court.
Bolten and Miers were held in contempt of Congress after they failed to appear before the House Judiciary Committee last year to testify about the firings of nine United States Attorneys in late 2006. President Bush advised Bolten and Miers not to testify saying any information they may have about the US attorney firings was covered by executive privilege.
"The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege," Mukasey wrote Pelosi. "Accordingly," Mukasey concluded, "the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime."
John Conyers, the Democratic chairman of the House Judiciary Committee, indicated at the time the House voted on the contempt charges that a lawsuit would be filed against Bolten and Miers if Mukasey refused to prosecute the charges.
“The Privilege Resolution introduced [February 13] follows the suggestion first made by former Judiciary Committee chairman James Sensenbrenner last year and authorizes the House general counsel to file a civil suit to enforce the subpoenas," Conyers said. "That way, if the administration refuses to enforce the contempt finding, we can take action in the courts. . . . Although Mr. Sensenbrenner suggested a civil lawsuit as an alternative to contempt, the courts have made clear that statutory contempt must be tried first. In a lawsuit in the 1980s, when the Justice Department tried to get a civil court ruling after the House had found a former EPA administrator in contempt, the court ruled that it should 'defer to established statutory procedures' on contempt and that a civil lawsuit could be pursued only after statutory contempt remedies are exhausted. Here, a civil suit would be filed only after the administration refuses to allow statutory contempt to go forward."
On Friday, Conyers excoriated Mukasey's decision not to pursue the matter.
"Our investigation into the firing of United States Attorneys revealed an administration and a Justice Department that seemed to put politics first, and today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden," Conyers said. "In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee's subpoenas.”
In an interview recently, David Iglesias, the former US attorney for New Mexico who was fired on Election Day in 2006 for reasons that appeared to be based entirely on partisan politics, implored the Justice Department to allow Bolten and Miers to testify.
Iglesias said documents in the case released thus far goes far beyond the realm of circumstantial evidence and shows culpability--and perhaps criminal behavior--on the part of several high-level former Justice Department and White House officials who were involved in his firing and sought to cover-up their involvement. Iglesias points to a transcript of an interview with career Justice Department official David Margolis conducted by congressional investigators in May 2007 in which Margolis said that he participated in a "brainstorming" session with other senior DOJ officials to come up with a reason to sell to the public and to lawmakers in the event that questions were raised about why Iglesias was ousted.''
In testimony before Congress last year, Iglesias said that a few weeks before the 2006 midterm elections he received telephone calls from Domenici, and the state's Republican congresswoman, Heather Wilson, inquiring about the timing of an indictment against a popular Democratic official in the state who was the target of a corruption investigation. Iglesias told Domenici and Wilson he could not discuss indictments with them. Iglesias was added to a list of US attorneys to be fired on Election Day in November 2006. The official or officials responsible for drafting the list is still unknown.