Mukasey Blocks Any Prosecution of Bush Officials for Contempt of Congress

Attorney General Michael Mukasey waited until late Friday to announce that he will block any prosecution of Bush officials for contempt of Congress. Mukasey’s protection of White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers could trigger a major inter-branch fight and advances yet another extreme legal interpretation of executive authority by the Bush Administration. It is not surprising, therefore, that he waited until late on a Friday to try to minimize media scrutiny of this controversial decision.

Bolten and Miers stand accused of contempt for refusing to supply information and to appear before the House Judiciary Committee in its investigation of 2006 firings of several U.S. attorneys. By refusing a great swath of documents and testimony , the Bush Administration’s claim of privilege was always dubious. There may indeed be privileged material in this fight with Congress. However, as is often the case with this Administration, the White House claim was so extreme that it was doubtful to be upheld in a court of law in its entirety.

Individual executive branch officers have always been subject to personal liability for contempt of Congress. While the President can pardon them, it was understood that he could not block them from being called to account in a court of law. Indeed, a court offers a neutral forum for such disputes between the legislative and executive branches to be heard.

Mukasey is essentially saying that, regardless of whether a president may be in flagrant violation of the law in ordering aides not to testify, the aides themselves can never be prosecuted — even former aides like Miers. Mukasey stated that he will not allow the case to be presented to a grand jury. Thus, by controlling the prosecutors, he is controlling (and blocking) the legal process.

He wrote Speaker Pelosi: “The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime . . .Therefore 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.”

The obvious meaning of “did not constitute a crime” is that, under his view, noncompliance could never constitute a crime. This would effectively make any prosecution of Administration officials for contempt a practical impossibility so long as a president claims that the refusal is based on privilege. Nixon must be kicking himself that he never had a Mukasey in this corner. He was stuck with a bunch of losers like Archibald Cox and William Ruckelshaus who believed in the supremacy of the rule of law over raw presidential power.

One has to wonder who Democrats like Sens. Chuck Schumer and Dianne Feinstein justify their decision to save Mukasey’s confirmation. Click here. Not only did he ultimately refuse (ever) to answer the question on torture, he has refused material to Congress, blocked prosecutions of executive branch officials, blocked any investigation of the torture program, and sought the promotion of lawyers who supported the illegal programs on torture and illegal surveillance.

What is most striking about this latest Mukasey moment is how circular his logic has become. Just a couple weeks ago, Mukasey said that he would not allow an investigation into the crime of torture because the president relied on the advice of lawyers in ordering the torture of suspects. Click here. Now, he is saying that lawyers cannot be prosecuted because they relied on the orders of the president.

Congress has the ability to fight back. The only question is whether it has the stomach to do so. It appears ready to file with a court to seek judicial intervention. It can also squeeze the funding of Justice Department offices and use its oversight authority aggressively. Of course, it can claim the right to try these cases itself — though this is highly unlikely.

Individuals were once arrested by the Sergeant-at-Arms for the House or Senate. They were dragged to one of the house floors (it is purely a matter for each individual house) and made to answer for the charges. This became too time-consuming so Congress created that statutory process of referral in 1857. Congress last used inherent contempt in a 1934 Senate action involving a one-week trial on the Senate floor. William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. The trial was notably upheld by the Supreme Court in Jurney v. MacCracken.

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27 thoughts on “Mukasey Blocks Any Prosecution of Bush Officials for Contempt of Congress”

  1. DW, I can believe it, when AG Mukasey has been sounding more like the defense counsel for the President than the country’s Attorney General. It seems to me that he hasn’t been acting for the PEOPLE since he was appointed AG to begin with.

  2. For those who want to read some good analysis of the case pending before Judge Bates, please consult this site:

    http://www.pointoforder.com

    Click on the topic “contempt” on the right side of the page and you will get all of the analysis to date.

  3. Well, more on the formerly admired Judge Mukasey now sadly fallen to the level of political hack:

    http://www.salon.com/opinion/greenwald/index.html

    Note his outright lie about the government methods being heard in open court! I cannot believe that the country’s Attorney General would stoop so low as to make such an obvious mis-statement of fact.

  4. I firmly believe that Congress does not have to tread delicately because the Bush Administration has violated the law. I don’t care how warmly a President is thought of if he or she violates the law. Call me old fashioned, but if you do the crime you do the time. It is supposed to work for Republican Presidents as well as you or I. I do like the idea of the inherent contempt. I believe that type of confrontation would be beneficial to the republic.

  5. Rafflaw,

    Congress has to proceed delicately. We all, after all, would not like a partisan runaway Congress to go after a President we felt warm feeling for!

    It is highly likely when all the rhetoric for television has been expressed, that they will try to avoid the courts being asked to decide a constitutional principle.

    I believe they will negotiate. I am not happy with that, but that’s what I think.

    For those of this community who savor the idea of the House using its inherent contempt ability, here is an appetizer.

    WHEREAS, it appears from the report of the _______ Committee that a witness, ___________, called before the Committee making inquiry as directed by House Res. _ (or by House Rule _), declined to answer certain questions (or failed to comply with a subpoena) relevant and pertinent to the matter then under inquiry:

    RESOLVED, That the Speaker issue his warrant directed to the Sergeant at Arms, or his deputy, to take in custody wherever to be found the body of ______ and the same in custody to keep, and that the said _________ be forthwith brought to the bar of the House of Representatives, then and there or elsewhere, as it may direct, to answer questions pertinent to the matter under inquiry or show cause why he should not be punished for contempt, and in the meantime to keep the said _____ in his custody to await the further order of the House; and the Speaker shall designate a room to be used for such purpose;

    RESOLVED further, That upon his arrest, _________ be furnished with a copy of this resolution and a copy of the report of the Committee;

    RESOLVED further, That when the said _______ shall be brought before the bar of the House to answer the charge of contempt of the House of Representatives, as set forth above, the Speaker shall then cause to be read to said ________ the findings by the Committee; the Speaker shall then inquire of said _________ if he desires to be heard, and to have counsel on the charge of being in contempt of the House of Representatives. If the said ________ desires to avail himself of either of these privileges, the same shall be granted to him. If not, the House shall thereupon proceed to take order in the same manner.

    Then if the official fail to clear him/herself, the next resolution:

    RESOLVED, That _______, having been heard pursuant to the citation heretofore issued directing him to show cause why he should not be punished for contempt for failing to answer the questions of the Committee (or failing to comply with the subpoena issued by the Committee) after subpoena issued, and having failed to show sufficient cause why he should not be punished, ______ is adjudged to be in contempt of the House.

    finally, the imprisonment resolution:

    RESOLVED, That the Sergeant at Arms be directed to hold said ______

    in close custody until he shall purge himself of said contempt, or until discharged by order of the House.

    thanks to Inherent Contempt 101 at the pointoforder.com website.

  6. I agree with Deeply Worried that the Congress cannot negotiate. Mukasey knows that the arguments that he has been making on issues as diverse as torture and executive privilege do not hold water. I would hope that Mukasey’s defense of Bush’s immoral and illegal actions will be exposed for what it is: criminal enabling.

  7. Well, I am waiting to see what happens after Speaker Pelosi convenes the Bipartisan Legal Advisory Group (all four of them) and they all agree to let the administration off the hook.

    Mukasey really is on unstable legal ground. He knows the difference between privilege applied to testimony and privilege applied to the appearance of officials.

    Congress has a use it or lose it problem here. If they decide to negotiate, that weakens the next Congress that is faced by the same obstructionism.

  8. Patty C, you are (as always) right and astute in the selection of that particular passage!

    Did you notice that Mukasey’s letter to Pelosi is now available!

    http://gulcfac.typepad.com/georgetown_university_law/files/mukasey.pelosi.0228.pdf

    He IS relying on the 1984 OLC memo and he DOES fudge on the issue of whether the Executive can immunize officials from even appearing before Congress when summoned.

    He is hoping that the path the EPA conflict took will be repeated: behind the scenes negotiations; and given the temper of the House leadership until recent times, he may be right. But I hope he is not.

  9. Rafflaw’s list of points is indeed a compelling detailed plan for an examination strategy. I fear though, that the Congressional hearings are highly tempered right now by how they play out in the greater political theater. In a certain respect, the tug-o-war for a reversal of absolute power may ultimately trump a public win.

    It wasn’t that long ago that we heard the same question – “Are you the People’s Lawyer or the President’s Lawyer?” asked of Alberto Gonzales. The answer was equally – not acceptable, although the timbre of the answers may be the most revealing.

    While I thought that the Kieth Olbermann’s ecstasy, months ago, about Mukasey’s devotion and respect for Eric Blair aka George Orwell, was more revealing of an academic void in Olbermann’s studies; I’m truly offended by Mukasey’s responses, in what I believe will seal the deal on his epitaph as a co-conspirator and Republican Barrister rather than one of a distinguished Solicitor for the American people.

  10. It would be fun to watch the “inherent contempt” process played out. I was also thinking (I know that is dangerous) if Mukasey’s reasoning is paired up with a different set of circumstances and facts, it it is still correct. If the President, any President, had ordered Bolton and Meirs to kill someone for him, would it still be proper for them to claim Executive Privilege when subpoened by Congress? Under Mukasey’s theory, is there anything the Congress can demand from an executive official? Was Meirs still an Executive Branch official when she was subpoened? If not, does that still allow her to attempt to use the Executive Privilege claim? If she was no longer employed by the Executive Branch, how much time can go by before she can no longer attempt to use the Executive Privilege claim? If the Executive is no longer in office, can Congress compel these officials, under Mukasey’s reasoning? And since when is a mere legal opinion binding on any branch of the government? Does the OLC hold some extra-constitutional power that is equal to or greater than Congress’ powers?

  11. Right.

    Such arrogance! As if their protection concerns should somehow not only
    be considered different, but paramount to everyone else’s.

  12. In General Surgery Mukasey’s might be likened to Rubber Band Ligation
    -a type of Hemorrhoid procedure which simply cuts of the blood supply to the ‘offending’ tissue. Even there, there is still something called “Informed Consent”.

    I like this paragraph from Page 7, DW.

    “The inherent contempt power is not specified in a statute or constitutional provision, but has been deemed implicit in the Constitution’s grant to Congress of all legislative powers. In an inherent contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in custody until such time as the contemnor provides the testimony or documents sought, or until the end of the session. Inherent contempt was most often used as a means of coercion, not punishment. A statutory criminal contempt provision was first enacted by Congress in 1857, in part because of the inadequacies of proceedings under the inherent power. In cases of criminal contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate, with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. Criminal contempt, unlike inherent contempt, is intended as a means of punishing the contemnor for non-compliance rather than to obtain the information sought. A statutory civil contempt procedure, applicable only to the Senate, was enacted in 1978. Under that procedure, a witness, who refuses to testify before a Senate committee or provide documents sought by the committee can, after being served with a court order, be held in contempt of court and incarcerated until he agrees to testify. Moreover, the House and Senate have authorized standing or special committees to seek civil enforcement of subpoenas. 19

    See, e.g., S. Res. 60 & S. Res. 194, 93d Cong., (1973) (Senate Select Committees on Watergate); H. Res. 60, 97 th Cong., (1981) (ABSCAM); H. Res. 12, 100th Cong. (1987) (House Iran–Contra); S. Res. 23, 100 th Cong. (1987) (Senate Iran–Contra); H. Res. 463, 105 th Cong., (1998) (Select Committee on National Security Commercial Concerns); see also H. Res. 1420, 94 th Cong. 2d Sess. (1976) (authorizing the Chairman of the House Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in United States v. American Telephone & Telegraph, 419 F. Supp. 454 (D.D.C. 1976)); H. Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the Chairman of the House Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil Inc., v. FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)).

  13. http://www.fas.org/sgp/crs/misc/RL34097.pdf

    Congress’s take.

    I like what Professor Turley said about the circularity of Mukasey’s reasoning. Executive officials aren’t culpable when they act on the advice of their legal counsel. Legal counsel aren’t prosecutable when they act on the order of their Executive officials! Neat package!

  14. Appearing before Congress and giving testimony is different than producing a set of documents.

    Questions from Congress committees are focused on a topic, yes. But they are somewhat open-ended in dealing with side-issues that illuminate the topic.

    An Executive official can claim, if ordered, privilege on any given topic question asked him. Then that claim can be examined further.

    By not allowing Meirs or Bolton to appear at all, the Executive made an unprecedented claim, that ANY question presented to these two officers would infringe on privilege and that conclusion must of course be unknowable to the Executive ante the actual questions themselves.

    What was done was to essentially declare that everything Meirs and Bolton had ever done since they first were hired was privileged and exempt from Congressional inquiry and that no possible question addressed to them would not infringe on privilege.

    That’s why I believe Mukasey’s reliance on Olson’s memo is fundamentally unsound. Documents have definitive contents, known to the holder and can be judged privileged. No question. Testimony, on the other hand, is open ended, the exact contents requested unknowable, and the Executive cannot create, by fiat, a class of employees immune from any appearance before Congress, because anything and everything they may be asked falls with the Executives LEGITIMATE concern of privilege.

    That’s my untutored analysis….now let the real experts speak.

  15. Hello, My wife and I have been out of town since Friday and so much has gone on! I missed the Mukasey announcement, but no matter, we could all see it coming.

    Good thing the Olson 1984 OLC memo is not a good leg to stand on here. If he is arguing from Olson’s 1984 OLC memo:

    http://media.washingtonpost.com/wp-srv/politics/documents/doj_opinion_executive_privilege_072007.pdf

    than he didn’t read the first paragraph:

    “As a matter of statutory construction and separation
    of powers analysis, a United States Attorney is not
    required to refer a congressional contempt citation to
    a grand jury or otherwise to prosecute an Executive
    Branch official who carries out the President’s instruction
    to invoke the President’s claim of executive
    privilege before a committee of Congress.”

    Meirs and Bolton did not appear “before a committee a Congress” and only then invoke executive privilege. They refused to appear at all and trivial a difference as that is it seems to me to be an obstacle to the Olson/Mukasey argument.

    What is at stake is the constitutional process. By not even deigning to appear before Congress, Meirs and Bolton, stepped outside the process. If they had stayed within it, they could have invoked the privilege and we would have seen what the Congress did then.

    Further, the Olson memo refers to the production of documents at Congress’s order, not the appearance of Executive officials. The DOJ position here seems to be that the production of officials is no more or less different than the production of documents and I think that’s a very debatable theory.

    Rep Wexler saw the difference clearly: please bear with me for this long copied testimony:

    WEXLER: Thank you very much, Mr. Chairman.
    Welcome, Mr. Attorney General. Thank you for being here.

    I would like, with your permission, to go back to an issue raised by Mr. Berman, which is this administration’s failure to comply with congressional subpoenas.

    WEXLER: This unprecedented obstructionist policy I think is best exemplified by the refusal of White House Chief of Staff Joshua Bolten and the former White House counsel, Harriet Miers, to even appear before this committee to answer legitimate questions about the firing of nine U.S. attorneys.

    As I know you are aware, on July 25th of this past year, this committee approved contempt citations for both Mr. Bolten and Ms. Miers for their unprecedented refusal to appear before this committee.

    Sadly, this behavior, abuse of power, in my mind, by this administration, is a pattern of limitless executive branch usurpation of authority. We have experienced endless executive privilege claims in the areas regarding the U.S. attorney firings, illegal wiretapping, and, of course, in the most notorious case, where the executive privilege got to the ludicrous point of Vice Percent Cheney arguing that he wasn’t even a part of the executive branch in order to avoid a Freedom of Information request.

    These abuses of executive power and the fact that the White House still refuses to provide any answers whatsoever to subpoenas is one of the primary reasons I have called for impeachment hearings regarding the vice president of the United States.

    I think it’s unfortunate, I think the American people lose in a big way, but I believe — by the administration not providing information — but I believe that impeachment hearings are the only way to actually obtain answers from this administration.

    With that context, I’m curious, have you been instructed by the president of the United States to enforce or not to enforce contempt citations issued by the Congress?

    MUKASEY: Respectfully, I cannot go into and will not go into, by way of affirmant or denial, any conversations that I’ve had with any other member of the executive on that subject or related subjects.

    I should say that there is a long line of authority, going back several administrations, back to the Clinton administration and beyond, that says that the enforcement by way of contempt of a congressional subpoena is not permitted when the president directs a direct adviser of his, somebody who directly advises him not to appear or when he directs any member of the executive not to produce document.

    That much said, there is a long history as well of cooperation and accommodation between branches, between Congress and the executive in accommodating one another’s needs so that we don’t have to come into collision in that fashion.

    WEXLER: Thank you, Mr. Attorney General.

    Can you tell me the individual that President Clinton instructed not to even appear before this Congress?

    MUKASEY: Walter Dellinger rendered an opinion respecting the reach of executive privilege. I can’t sit here…

    WEXLER: I didn’t ask about opinions. I’m asking if President Clinton instructed any individual in the Clinton administration not to appear before Congress.

    MUKASEY: I do not know that.

    WEXLER: OK. There is nobody. This is an unprecedented act where the president of the United States has taken the position that a high-level administration official should not even appear.

    WEXLER: And I asked — I’ll ask it more generally, then — have you been instructed to enforce or not enforce congressional citations?

    MUKASEY: I will give the same answer that I gave before, which is that conversations between executive branch members are privileged. And that doesn’t mean that I have or have not.

    WEXLER: OK, fair enough.

    Should Congress pass a contempt citation, will you enforce it?

    MUKASEY: A contempt citation of…

    WEXLER: With respect to the subpoenas, with respect to Mr. Bolten?

    MUKASEY: If you’re talking about a contempt citation based on Mr. Bolten’s failure to appear…

    WEXLER: Yes.

    MUKASEY: … in response to a direction by the president that he not appear, the answer is no. Because he can’t violate that request.

    WEXLER: Are you the people’s lawyer, as you said to the Senate, or are you the president’s lawyer?

    MUKASEY: I’m the attorney general of the United States. And it’s my obligation to enforce all legally binding precedent.

    WEXLER: Thank you, Mr. Chairman.

  16. Let’s rethink this for a moment.

    Arrested and dragged… This could be a real revenue producer
    -not to mention the entertainment value! Cut a deal with cable/satellite operators and/or feature it on Pay-Per-View…!?

    “Individuals were once arrested by the Sergeant-at-Arms for the House or Senate. They were dragged to one of the house floors (it is purely a matter for each individual house) and made to answer for the charges. This became too time-consuming so Congress created that statutory process of referral in 1857.”

    Mukasey’s Friday afternoon ‘bush attack’ antics are almost too predictable aren’t they – from his very first day, 11/9?

  17. I would agree with you Susan about the Mukasey confirmation. I don’t know if I would vote out Schumer for his role in it, but Feinstein is my list to go. Schumer is pretty strong on other issues, but he fell pretty hard on backing Mukasey. You could see it on his face when he was questioning him in the last hearing. When are the Democrats in the Senate going to realize that there is no compromising with the Bush Admninistration. You have to fight them to the end on any issue of importance. And the AG and judges nominations are two examples where we cannot compromise. The incoming President has a lot of work to do to try to bring us back out of the 19th century.

  18. JT, this is truly horrifying, and another clear sign (to me anyway, for what that’s worth) that by putting this AG up for confirmation, this administration has crossed the line between democracy and dictatorship. I’d love to ask Sens. Schumer and Feinstein what they were ‘smoking’ when they saved Mukasey’s confirmation! Not that they would answer, of course. No doubt they consider themselves immune from accountability to the people who VOTED them in. I only wish I lived in NY or CA, so I could vote one of them OUT when they next come up for re-election.

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