After more than six months of delay, the House will vote Thursday to authorize criminal and civil contempt proceedings against White House chief of staff Josh Bolten and former White House counsel Harriet Miers for failing to comply with Judiciary Committee subpoenas.
The House vote could set up a constitutional showdown between Congress and the White House over the limits of executive privilege - particularly on the question of whether President Bush or any president can prevent senior aides from testifying before congressional committees.
The House Rules Committee approved separate resolutions Wednesday afternoon approving criminal as well as civil contempt proceedings against Bolten and Miers for failing to comply with the subpoenas, which were issued by the Judiciary Committee as part of its investigation into the 2006 firings of nine U.S. attorneys.
Bush, citing executive privilege, refused to allow Bolten and Miers to testify or turn over internal White House documents related to the firings. Bolten and former White House deputy chief of staff Karl Rove also declined to appear before the Senate Judiciary Committee in response to subpoenas issued in its own probe of the firings.
Under the civil contempt resolution, Judiciary Committee Chairman John Conyers Jr. (D-Mich.) is "authorized to initiate or intervene in judicial proceedings" against Bolten and Miers.
The House General Counsel's office is ordered to represent the House in any legal action, and Speaker Nancy Pelosi (D-Calif.) is directed to "consult" with the Bipartisan Legal Advisory Group in the issue. That group, comprising top Democrats and Republicans, handles legal issues affecting the integrity and privileges of the House.
It is unclear how a criminal case against Bolten and Miers, even if authorized by the House, would move forward.
The U.S. attorney for the District of Columbia would normally handle such a case, but Justice Department representatives, including Attorney General Michael Mukasey, have said that the U.S. attorney is not authorized to bring a criminal contempt case against an administration official in a situation involving an executive privilege claim.
White House counsel Fred Fielding has offered to allow senior Bush administration aides to testify behind closed doors, but with no transcript kept and no possibility that these staffers could be subpoenaed again.
Both the House and Senate Judiciary committees rejected that offer as inadequate.
"The American people will find it baffling that on a day that House leaders are trying to put off passing critical legislation to keep us safer from the threat of foreign terrorists overseas, they are spending scarce time to become the first Congress in history to bring contempt charges against a president's chief of staff and lawyer," White House spokeswoman Dana Perino wrote in an e-mail.
"If the House had nothing better to do, this futile partisan act would be a waste of time," she said. "Unbelievably, it is being considered in place of legislation to make us safer, address concerns in the housing market, improve health care conditions for our veterans, reauthorize No Child Left Behind or open new overseas markets for U.S. goods and services, among other bills. The 'people's House' should reflect the priorities of the American people, not the fantasies of left-wing bloggers."
Although the House Judiciary Committee approved its contempt resolutions more than six months ago, Pelosi and other Democratic leaders have repeatedly postponed a floor vote until now, citing a variety of reasons for doing so.
Some top Democrats, including Democratic Caucus Chairman Rahm Emanuel, don't want the House to press the issue, fearing that Congress' authority could be eroded if the courts support Bush's position.
Other Democrats, including some conservative Blue Dogs, fear that seeking this legal fight is needlessly inflammatory, especially since former Attorney General Alberto Gonzales - on whose watch the firing occurred - has left office.
But Pelosi said Wednesday that the Democratic leadership must preserve the right of Congress to investigate the White House and insist that congressional subpoenas be honored.
"[Conyers] has tried over and over again, I think 13 times, to find some kind of accommodation," Pelosi said. "We have to move forward."
Conyers told the Rules Committee that he moved forward with the contempt resolution "with great reluctance."
"Unfortunately, it is a step that is clearly necessary to preserve the role and constitutional prerogatives of Congress as an institution, in addition to getting to the bottom of the U.S. attorney controversy," Conyers said. "If the executive branch can disregard congressional subpoenas in this way, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our bipartisan responsibility to protect it."
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