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Published on Saturday, May 24, 2008 by Mother Jones

In Contempt Case, White House Seeks Cheney Treatment

by Brian Beutler

After trying for more than a year to secure Karl Rove's testimony as part of an ongoing investigation into the 2006 firings of nine US attorneys, the House Judiciary Committee subpoenaed the former White House political adviser on Thursday, opening another front in its battle over executive power with the Bush administration.

The White House has claimed broad executive privilege over much of the information the committee has sought from Rove and other officials. Last July the administration blocked former White House counsel Harriet Miers and White House chief of staff Josh Bolten from complying with congressional subpoenas for testimony and internal documents. In February, the House voted to hold Miers and Bolten in contempt of Congress. After the Justice Department, acting on orders from the White House, refused to enforce the contempt citations, the judiciary committee has turned to the US District Court for the District of Columbia for redress. Rove, for his part, made his position on testifying clear last August, when he refused to comply with a subpoena from the Senate Judiciary Committee related to the attorney firings. The Senate panel stopped short of pursuing a contempt citation, but the House counterpart has been far less timid in this regard. If Rove refuses Conyers' subpoena, it's quite possible that he may wind up in court along with Miers and Bolten, according to a House Judiciary Committee aide.

The White House, meanwhile, is working to derail the House Judiciary Committee's current case. Earlier this month, Bush administration lawyers filed a motion in the case arguing that the complaint against Miers and Bolten should be dismissed outright. Oral arguments from both sides are still forthcoming, and the first ruling, if there is one, isn't expected until the summer. But the White House may have a friend in the judge presiding over the case, a Bush appointee named John Bates.

A former deputy independent counsel in Ken Starr's Whitewater investigation, Bates is the same judge who threw out a Government Accountability Office complaint against Vice President Dick Cheney in December 2002. Back then, the GAO's comptroller general, David Walker, was seeking access to internal documents from Cheney's secretive Energy Task Force, using arguments similar to those the judiciary committee is making today-namely that the White House's refusal to provide information to congressional investigators is damaging Congress' oversight mandate.

In its current legal standoff with the judiciary committee, the Bush administration is citing Bates' decision in Walker v. Cheney as one reason the case should be dismissed. In its motion, White House attorneys note that "this Court already has rejected an effort to turn a congressional interest in information [into a civil matter]. In Walker v. Cheney, this Court held that the Comptroller General lacked [judicial] standing to compel the release of documents concerning the composition and conduct of the National Energy Policy Development Group chaired by the Vice President."

Though Bates ruled in the Bush administration's favor in 2002, it's unclear that precedent will help the White House now. Bates ultimately rejected Walker's case not necessarily because he bought the White House's claims of executive privilege, but because he found that, as an individual, Walker himself had no standing to sue the executive branch on Congress' behalf (particularly when Congress had neither subpoenaed the information sought in the lawsuit nor signed on as a plaintiff).

In the case against Miers and Bolten the facts are almost precisely the opposite: That case was filed by a congressional committee, with the assent of Congress, in pursuit of subpoenaed information and testimony.

In his ruling in the energy task force case, Bates actually addressed a scenario similar to the one that's playing out now. "Indeed," he wrote, "there is some authority in this Circuit indicating that a House of Congress or a committee of Congress would have standing to sue to retrieve information to which it is entitled."

Stan Brand, who served as general counsel to the House of Representatives from 1976 to 1983-and who litigated a contempt case during that stretch-doesn't think the administration's argument passes muster. "When you make a case you sort of throw everything out there that you can," Brand says. "Whether the judge agrees is a different question...I think the House has a strong case."

Both the White House and Congress are hoping to avoid setting a major precedent as a result of the current litigation, as an adverse ruling for either party could, alternately, hobble congressional oversight clout or executive power. Mindful of this, Congress is only seeking a ruling on the narrow question of subpoena enforcement and avoiding the broader one of whether the president's claims of executive privilege are valid. For its part, the White House is asking Bates to dismiss the case, contending that a judicial resolution "would forever and irrevocably alter the accommodations process under which the branches have operated" since the nation's founding.

The White House brief argues that Congress need not go before the court, since it has a "variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution." The White House lawyers contend, paradoxically, that Congress "must refer [these] matters to the Executive Branch." Yet, when Congress did refer the contempt citations to the Justice Department-part of the executive branch-Attorney General Michael Mukasey, making good on a promise by President Bush, refused to allow the US attorney for the District of Columbia to enforce them.

In the event that Bates does rule against the judiciary committee, Congress does have other options. As White House lawyers indicated, it can refuse to confirm Bush nominees, hold up appropriations requests, or even invoke its inherent contempt authority, placing Miers and Bolten on trial in the House of Representatives. And, of course, it can appeal the decision. "Congress really has robust powers in this area," notes Mike German, policy counsel for the ACLU's Washington Legislative Office. "They're using this as one way to move forward, but they have others as well."

Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations including Mother Jones.

© 2008 Mother Jones

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