KaKaKarl update

Rove Skips House Judiciary Deposition

Submitted by Chip to afterdowningstreet on Tue, 2009-02-24 02:31.

John Bresnahan reports:

Former Bush adviser Karl Rove was a no-show today at his scheduled deposition deadline for the House Judiciary Committee's ongoing probe into the U.S. attorney firings -- setting up a major decision for President Obama on how to respond to congressional subpoenas.

Committee Chairman John Conyers (D-Mich.) subpeonaed Rove to find out what he knows about the Dec. 2006 firings which eventually toppled former Attorney General Alberto Gonzales.

When Rove was subpoenaed in 2007, President Bush asserted "absolute immunity" for his top aides, refusing to allow them even to appear before a congressional panel. House Democrats eventually sued, and won an initial legal victory. The Bush White House, through the Justice Dept., appealed the ruling, and when Bush left office in January 2009, the case was still undecided.

White House Counsel Greg Craig has urged the two sides to cut a deal, but Rove and his attorney, Robert Luskin, have kicked it back to the White House, saying it is up to them to assert executive privilege or not.

So the next big development will occur on March 4, when the Obama administration is scheduled to file a motion in federal appeals court laying out its position on the issue.

Prosecute torture crimes and send Karl Rove to jail

What will Obama do?

Obama can go after the criminals who authorized torture.

He can also instruct the Justice Department to go after Karl Rove. Unprotected by Bush, Rove has a good shot at seeing jail time.

But we'll see. So far, Obama has been a good Republicrat.

Take a look at this great video I found called:

"Prosecute torture crimes and send Karl Rove to jail "

You can view it here:

http://www.brasschecktv.com/page/547.html

Prosecutor named to probe US attorneys' firings

By LAURIE KELLMAN and MARK SHERMAN

(AP) -- Attorney General Michael Mukasey named a prosecutor Monday to investigate whether former Attorney General Alberto Gonzales, other Bush administration officials or Republicans in Congress should face criminal charges in the firings of nine U.S. attorneys.

The launching of a criminal inquiry follows the recommendation of internal Justice Department investigators who concluded that, despite denials of the administration, political considerations played a part in the firings of as many as four of the federal prosecutors.

In their 358-page report, investigators said the lack of cooperation by senior officials at the White House and in the Justice Department left gaps in their findings that should be investigated further.

"Serious allegations involving potential criminal conduct have not been fully investigated or resolved," the report said, listing lying to investigators, obstruction of justice and wire fraud among the potential felony crimes.

Mukasey's appointment of Nora Dannehy, the acting U.S. attorney in Connecticut, to continue the inquiry leaves open the possibility that it won't be finished before President Bush leaves office in January.

Senators of both parties who led a congressional probe of the firings praised Mukasey's decision and cautioned Bush against pardoning anyone as he leaves the White House.

"The American people will see any misuse of the pardon power or any grant of clemency or immunity to those from his administration involved in the U.S. attorney firing scandal as an admission of wrongdoing," said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.

The report unsparingly criticized Bush administration officials, Republican members of Congress and their aides for the ousters, which touched off a scandal that stripped the Justice Department of its leadership and sparked a historic showdown in court.

The report by Justice Department Inspector General Glenn Fine and Office of Professional Responsibility Director Marshall Jarrett described Gonzales and his deputy, Paul McNulty, as "remarkably disengaged" from the process that led to the dismissal of the prosecutors.

Monday's report was the latest to criticize Gonzales' management of the Justice Department during his 31 months as attorney general. Gonzales quit under fire in September 2007.

In a statement issued by his attorney, Gonzales said: "My family and I are glad to have the investigation of my conduct in this matter behind us and we look forward to moving on to new challenges."

Gonzales' attorney, George Terwilliger, noted that the report found no unlawful conduct. "It seems rather odd," Terwilliger said, "that rather than bring the investigation to a close, the department would escalate the matter to the attention of a prosecutor."

U.S. attorneys are political appointees who serve at the pleasure of the president, but cannot be fired for improper reasons.

The report singled out the removal of U.S. Attorney David Iglesias in New Mexico - one of the nine - as the most troubling. Iglesias's firing followed complaints from leading Republican political figures in New Mexico, including Sen. Pete Domenici and Rep. Heather Wilson, about Iglesias' handling of voter fraud and public corruption cases, the report said.

Iglesias, who now works as a paid speaker and practices law part-time, said he thinks criminal investigations should be pursued against Domenici and anyone else who may have broken federal criminal laws. He said he had not yet seen the report.

"I've said all along that these moves were improper and illegal and now it appears that they were criminal as well," he said in an interview. "Our complaints weren't just complaints of disgruntled former employees."

A spokesman for Domenici, who is leaving Congress at the end of the year, did not respond to requests for comment.

Wilson, who cooperated in the internal investigation of the firings, issued a statement in which she said the report's findings were incorrect. She acknowledged contacting Iglesias about possible indictments in a New Mexico case, but she denied complaining about him to anyone in the Bush administration.

Investigators said their inquiry of the firing of Iglesias and others was hampered by the lack of cooperation from Domenici, former White House adviser Karl Rove, former White House counsel Harriet Miers, former Justice Department official Monica Goodling and other key witnesses.

The president's refusal to let Rove, Miers and White House Chief of Staff Josh Bolten testify before Congress about the firings touched off a legal fight that is now before a federal appeals court. Most recently a judge ordered Miers to answer questions from the House Judiciary Committee about the firings.

The report concluded that Gonzales' chief of staff, Kyle Sampson, was the person most responsible for developing the plan to fire the prosecutors and said that Sampson's comments to Congress, the White House and others were misleading.

Sampson and others claimed at first that the prosecutors' poor performance inspired their firings. But the report found that Bud Cummins, the U.S. Attorney in Arkansas, was forced out to make way for Timothy Griffin, who had previously been Rove's deputy in the White House political office.

It also said the dismissal of Todd Graves, the U.S. Attorney for the Western District of Missouri, probably resulted from pressure from the office of Republican Sen. Christopher "Kit" Bond. Bond was upset that Graves did not intervene in a dispute between the staffs of Bond and Republican Rep. Sam Graves, the prosecutor's brother, the report said.

A spokeswoman for Bond did not immediately return a call for comment.

Investigators found no evidence that Arizona U.S. Attorney Paul Charlton and U.S. Attorney Carol Lam of San Diego were fired for prosecuting Republican members of Congress.

Similarly, the report says Justice Department officials had legitimate concerns about the work of two other prosecutors who were fired - Margaret Chiara of Grand Rapids, Mich., and Kevin Ryan of San Francisco.

---

On the Net:

Justice Department report: http://www.usdoj.gov/oig/new.htm

© 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Learn more about our Privacy Policy.

From George Washington to George Bush: Executive Privilege Through History Presidential Veto Primer

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Your Questions Answered Ask AP: Hurricane reporters, property in Cuba

WASHINGTON (AP) -- Attorney General Michael Mukasey named a prosecutor Monday to investigate whether former Attorney General Alberto Gonzales, other Bush administration officials or Republicans in Congress should face criminal charges in the firings of nine U.S. attorneys.

The launching of a criminal inquiry follows the recommendation of internal Justice Department investigators who concluded that, despite denials of the administration, political considerations played a part in the firings of as many as four of the federal prosecutors.

In their 358-page report, investigators said the lack of cooperation by senior officials at the White House and in the Justice Department left gaps in their findings that should be investigated further.

"Serious allegations involving potential criminal conduct have not been fully investigated or resolved," the report said, listing lying to investigators, obstruction of justice and wire fraud among the potential felony crimes.

Mukasey's appointment of Nora Dannehy, the acting U.S. attorney in Connecticut, to continue the inquiry leaves open the possibility that it won't be finished before President Bush leaves office in January.

Senators of both parties who led a congressional probe of the firings praised Mukasey's decision and cautioned Bush against pardoning anyone as he leaves the White House.

"The American people will see any misuse of the pardon power or any grant of clemency or immunity to those from his administration involved in the U.S. attorney firing scandal as an admission of wrongdoing," said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.

The report unsparingly criticized Bush administration officials, Republican members of Congress and their aides for the ousters, which touched off a scandal that stripped the Justice Department of its leadership and sparked a historic showdown in court.

The report by Justice Department Inspector General Glenn Fine and Office of Professional Responsibility Director Marshall Jarrett described Gonzales and his deputy, Paul McNulty, as "remarkably disengaged" from the process that led to the dismissal of the prosecutors.

Monday's report was the latest to criticize Gonzales' management of the Justice Department during his 31 months as attorney general. Gonzales quit under fire in September 2007.

In a statement issued by his attorney, Gonzales said: "My family and I are glad to have the investigation of my conduct in this matter behind us and we look forward to moving on to new challenges."

Gonzales' attorney, George Terwilliger, noted that the report found no unlawful conduct. "It seems rather odd," Terwilliger said, "that rather than bring the investigation to a close, the department would escalate the matter to the attention of a prosecutor."

U.S. attorneys are political appointees who serve at the pleasure of the president, but cannot be fired for improper reasons.

The report singled out the removal of U.S. Attorney David Iglesias in New Mexico - one of the nine - as the most troubling. Iglesias's firing followed complaints from leading Republican political figures in New Mexico, including Sen. Pete Domenici and Rep. Heather Wilson, about Iglesias' handling of voter fraud and public corruption cases, the report said.

Iglesias, who now works as a paid speaker and practices law part-time, said he thinks criminal investigations should be pursued against Domenici and anyone else who may have broken federal criminal laws. He said he had not yet seen the report.

"I've said all along that these moves were improper and illegal and now it appears that they were criminal as well," he said in an interview. "Our complaints weren't just complaints of disgruntled former employees."

A spokesman for Domenici, who is leaving Congress at the end of the year, did not respond to requests for comment.

Wilson, who cooperated in the internal investigation of the firings, issued a statement in which she said the report's findings were incorrect. She acknowledged contacting Iglesias about possible indictments in a New Mexico case, but she denied complaining about him to anyone in the Bush administration.

Investigators said their inquiry of the firing of Iglesias and others was hampered by the lack of cooperation from Domenici, former White House adviser Karl Rove, former White House counsel Harriet Miers, former Justice Department official Monica Goodling and other key witnesses.

The president's refusal to let Rove, Miers and White House Chief of Staff Josh Bolten testify before Congress about the firings touched off a legal fight that is now before a federal appeals court. Most recently a judge ordered Miers to answer questions from the House Judiciary Committee about the firings.

The report concluded that Gonzales' chief of staff, Kyle Sampson, was the person most responsible for developing the plan to fire the prosecutors and said that Sampson's comments to Congress, the White House and others were misleading.

Sampson and others claimed at first that the prosecutors' poor performance inspired their firings. But the report found that Bud Cummins, the U.S. Attorney in Arkansas, was forced out to make way for Timothy Griffin, who had previously been Rove's deputy in the White House political office.

It also said the dismissal of Todd Graves, the U.S. Attorney for the Western District of Missouri, probably resulted from pressure from the office of Republican Sen. Christopher "Kit" Bond. Bond was upset that Graves did not intervene in a dispute between the staffs of Bond and Republican Rep. Sam Graves, the prosecutor's brother, the report said.

A spokeswoman for Bond did not immediately return a call for comment.

Investigators found no evidence that Arizona U.S. Attorney Paul Charlton and U.S. Attorney Carol Lam of San Diego were fired for prosecuting Republican members of Congress.

Similarly, the report says Justice Department officials had legitimate concerns about the work of two other prosecutors who were fired - Margaret Chiara of Grand Rapids, Mich., and Kevin Ryan of San Francisco.

---

On the Net:

Justice Department report: http://www.usdoj.gov/oig/new.htm

© 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Learn more about our Privacy Policy.

How to Put Rove Behind Bars for Years: David Swanson

Last August, a group of Congressman Henry Waxman's constituents met with him and urged him to make use of inherent contempt. They were then obliged to explain to him what inherent contempt is. While the current (110th) Congress has probably seen more requests, subpoenas, and contempt citations ignored than all previous Congresses combined, Waxman has certainly endured more such insult than all other committee chairs combined in the current Congress. He's single-handedly destroyed whole forests with the flood of letters and requests and subpoenas he's sent down Pennsylvania Avenue, and yet he was apparently unaware of a procedure commonly used by Congress through most of this nation's history that would actually compel people to show up and answer questions and produce documents.

Over the past 12 months a vague sort of awareness of inherent contempt has crept into the minds of certain committee members and party leaders, almost entirely as a result of thousands of citizens demanding that they immediately make use of it. Quasi-grass-roots groups afraid to demand impeachment have taken up the cry for inherent contempt, but pro-impeachment groups have not all paid sufficient attention to it, their eyes set on a bigger and better prize. And, of course, in a sane world we would see impeachment happening. The latest overwhelming piece of evidence of the most egregious impeachable offense conceivable comes from Ron Suskind's book released this week reporting that Iraq's intelligence chief had informed the United States prior to the 2003 invasion of Iraq that Iraq possessed no weapons of mass destruction. George Tenet and the White House have admitted the truth of this, but absurdly dismissed it as unimportant.

However, here's an additional vital piece of information: our so-called representatives only intend to pretend to work for two more weeks this year, and those two weeks are scheduled for September. If anything could move them to impeachment (and more days at the office), perhaps a fight over inherent contempt could. Therefore, I propose we all demand one. (And if you bear with me, I'll tell you exactly what inherent contempt is.)

Congresswoman Zoe Lofgren recently wrote the following dismissive letter to her constituents who were demanding inherent contempt:

"Thank you for contacting me about Karl Rove's failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove's failure to testify very seriously, and we are currently considering all options - including contempt proceedings -- to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement 'inherent contempt' as if that is a viable option. The jail cell in the basement of the Capitol doesn't exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters. Again, thanks for being in touch. Please do not hesitate to let me know if I may ever be of assistance to you or your family."

Congresswoman Lofgren is very badly informed or chooses to pretend to be. The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as "inherent self-protection". There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of "inherent contempt" a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a Congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. With labor unions banned on Capitol Hill, there shouldn't be any legal difficulties in immediately rearranging a few employees of the government.

When inherent contempt began to be discussed in 2007, having not been heard of in some 75 years, the Politico (never a publication overly careful with facts) reported that the jail had been razed in 1929. Congresswoman Lofgren, on the other hand, maintains that "the jail cell in the basement of the Capitol" doesn't exist. She seems to take no position on whether such a thing ever did exist. Both of these replies wildly miss the mark. The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly.

The reference to 1929 may be a reference to the building that stood on the current site of the Supreme Court building, construction of which began that year. The Old Capitol Prison was not the only thing housed in that building when it was there, was not among the initial uses for that building, and had long since ceased to be used by Congress when the building was razed. During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional "contumacious witness" in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article. This 1934 article from Time Magazine discusses the Senate's use of the District Jail to punish contempt in both 1860 and 1934.

In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.

Congress has not always made use of outside jails. In 1868 this measure was approved: "Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified.... Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker."

The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. The room where we held the Downing Street Minutes hearing in June of 2005 would work fine with very few modifications. And -- I'm sure this will surprise you -- DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.

Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers' office last summer to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn't seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a "State of the Union" speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her.

But if use of the police has vanished since 1934 as a tool for enforcement of Congressional contempt, then what did Congresswoman Lofgren mean by suggesting that her committee was contemplating "contempt proceedings"? Well, she meant that -- in fulfillment of the popular "definition" of insanity -- Congress would consider doing with Karl Rove what it has long been doing with Harriet Miers and Josh Bolten, that is: waiting for the executive branch of our government to go through some sort of magical conversion and begin prosecuting its own most loyal criminals.

In the early years of this country inherent contempt was not distinguished as "inherent". It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of "self-protection". This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. (Interestingly, the record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him [or her, Miers may be the first her] on trial, does not have to be preceded by a subpoena. That answers another question asked aloud by Rep. Waxman in a recent hearing.)

Common Cause recently advocated inherent contempt with this statement: "Under the inherent contempt power, the House Sergeant-at-Arms has the authority to take Karl Rove into custody and bring him to the House where his contempt case can be tried, presumably, by a standing or select committee. If he is found by the House to be in Contempt of Congress, he can be imprisoned for an amount of time determined by the House (not to exceed the term of the 110th Congress which ends the beginning of January 2009) or until he agrees to testify. The Supreme Court has recognized the power of the House to enforce its own subpoenas through the inherent contempt provision, stating that without it, Congress 'would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.' Before Congress asked the Justice Department to try contempt cases on its behalf, the inherent contempt power was used more than 85 times between 1795 and 1934, mostly to compel testimony and documents."

Even the Washington Post agrees: "Both chambers also have an 'inherent contempt' power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice."

Before moving on, and before I forget, I should point out that there is a reason my title claims we can put Rove away for years, while the proposal from Common Cause would only lock him up until next January. While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress. And, remember that while the House Judiciary Committee just recently voted to hold Rove in contempt, the Senate Judiciary Committee voted to do that last December. It simply hasn't yet done it, choosing to defer to the full Senate, which chooses to shut its eyes, cover its ears, and hum.

But deferring to the full House or Senate is part of the tradition of statutory contempt, not inherent contempt. It has been solidly established that inherent contempt resides in a full house or a committee. So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses. Given what Congress spends its precious time on these days, who wouldn't wish for it to have back its inherent contempt power? Well, our wish is granted. Congress never lost that power, and in fact continued to exercise it up through 1934since when it has simply chosen not to. Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House's contempt citations for Miers and Bolten now are. Delaying that court decision until the next Congress, which seems likely, makes the possibility of enforcement unlikely. And if a decision were reached, it would fall to Congress to use inherent contempt to enforce it anyway.

On April 15, 2008, the Congressional Research Service (CRS) laid out its understanding of contempt powers in an updated report: http://www.fas.org/sgp/crs/misc/RL34097.pdf

This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today's members of Congress will hardly deign to speak with anyone who has not properly bribed them through our "campaign financing" system, at that time this action was considered an insult to the dignity of Congress. Yes, Congress was believed to possess dignity. (Another early case involved a newspaper falsely reporting that the Senate had passed a bill. Nowadays it's acceptable for the president to falsely sign a bill that wasn't passed. False reporting these days is almost considered a patriotic duty.)

The CRS report disagrees with the Bush administration's assertions of "executive privilege" but cannot change the fact that they are likely to be raised again as often as needed. And the report suggests that the Fifth Amendment right to avoid self-incrimination applies in certain contexts. However, past tradition makes that claim debatable, and the statute reads:

"U.S. CODE

TITLE 2--THE CONGRESS

CHAPTER 6--CONGRESSIONAL AND COMMITTEE PROCEDURE; INVESTIGATIONS

Sec. 193. Privilege of witnesses

No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous."

The power of Congress that I am proposing it use or lose is not the sort of power the White House has claimed to randomly kidnap, detain, disappear, torture, and murder. Everything Congress does in this regard must be open and public. It must not randomly, even if publicly, arrest someone for an offense unrelated to contempt of Congress - or for no offense at all. It must allow communication with legal counsel and family. It must treat everyone humanely. It must not abuse its power, and such abuses must be checked by the judicial branch. The purpose of Congress detaining prisoners is to compel them to produce information believed to be of potentially vital importance to the governance of our nation.

The CRS report provides very little background on this, but a great deal can easily be had. Simply look up Hinds Precedents, especially chapters 53 and 51, and Cannon's Precedents, especially chapters 184-185. You'll find numerous detailed cases of Congress asserting its power, arresting people, holding them until they agreed to answer questions, and then releasing them. Some of these people did not refuse to appear, but simply failed to satisfactorily answer questions. One has to wonder how a previous Congress might have responded to Alberto Gonzales's endless recitations of "I do not recall."

In 1857, a New York Times reporter refused to say which members of Congress had asked him to get them bribes (protecting his "sources" just as various Judith Millers today protect the people who feed them proven lies that costs thousands of lives), so Congress locked him up until he answered and then banned him from Congress. Imagine trying that with ABC News executives until they revealed who fed them the anthrax-is-from-Iraq lies.

In 1924 an oil executive appeared but refused to answer certain questions, so the Senate held -- literally held -- him in contempt. Senator Thomas Walsh of Montana argued that this question of contempt was of the gravest importance, and that it involved "the very life of the effective existence of the House of Representatives of the United States and of the Senate of the United States." The matter was taken to court, and the witness fined and imprisoned. Imagine locking up the attendees of Cheney's secret energy task force meetings until they explained how our supposedly democratic government arrived at some of its worst recent decisions.

Various cases of contempt in the past have involved perceived insults to Congress and have been resolved by a simple apology. This may strike people today as humorous and vain. I find less fault in it than I do in today's Congress, which appears completely incapable of feeling either shame or self-respect. If impeachment is off the table, inherent contempt is in the past, contempt citations are delayed until moot, subpoenas are laughed at, FISA requests are tossed in the trash, and other appeals to the executive branch to please allow itself to be overseen are simply ignored, then I must agree with Senator Walsh that we are witnessing the very death of the House and Senate. The capacity to hold someone in contempt, on its own, in September, would be a sign of life in what otherwise appears a motionless corpse.

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http://www.davidswanson.org

DAVID SWANSON is a co-founder of After Downing Street, a writer and activist, and the Washington Director of Democrats.com. He is a board member of Progressive Democrats of America, and serves on the Executive Council of the Washington-Baltimore Newspaper Guild, TNG-CWA. He has worked as a newspaper reporter and as a communications director, with jobs including Press Secretary for Dennis Kucinich's 2004 presidential campaign, Media Coordinator for the International Labor Communications Association, and three years as Communications Coordinator for ACORN, the Association of Community Organizations for Reform Now. Swanson obtained a Master's degree in philosophy from the University of Virginia in 1997.

Mukasey rebuffs Pelosi, refuses to prosecute Bush aides for contempt

By Jason Leopold Online Journal Contributing Writer Mar 3, 2008, 00:44

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 ultimatel 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 swiftly responded, stating in a news release that she has given the Judiciary Committee authority to file lawsuits against Bolten and Miers in federal court.

"The American people demand that we uphold the law," Pelosi said. "As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that."

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."

Two weeks ago, the full House voted on a contempt of Congress citation, the first time it has done so in 25 years, and referred the matter to Mukasey for prosecution.

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 a recent interview, 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.

"Congress is exercising its legitimate oversight role in this unfinished matter," said Iglesias, who has written a book on the ordeal, "In Justice: Inside the Scandal that Rocked the Bush Administration," that is due to be published in June. "I implore the White House to do the right thing and produce Ms. Miers and Mr. Bolten to the Congress."

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.

Last April, Iglesias filed a Hatch Act complaint with the White House Office of Special Counsel, alleging former White House political adviser Karl Rove and other Bush administration officials may have broken the law by orchestrating his firing. That investigation is still ongoing, but the obscure shop has hit some roadblocks. Special Counsel Scott Bloch, a Bush appointee, said he has been unable to obtain certain documents from the Justice Department (DOJ) to advance his probe into the firings.

John McKay, the former US attorney for the Western District of Washington who was also fired in late 2006 for reasons that appear to have been motivated by partisan politics, wrote in a lengthy article in the January edition of the Seattle University Law Review that Iglesias's firing stands out among the other eight federal prosecutors because it demonstrates "the very real prospect of improper interference with an ongoing criminal investigation involving public corruption and the seeking of political advantage."

"Violations of the obstruction of justice statute may have occurred and should be investigated," McKay wrote. "Even as the role of the White House remains shrouded in its claims of executive privilege, 23 certain White House employees appear to have been heavily involved in the dismissal of U.S. Attorney Iglesias. In several e-mails it appears that these officials were reacting directly to the complaints of Senator Pete Domenici (R-NM) and the ongoing investigation into public corruption in New Mexico. For example, Deputy White House Counsel Bill Kelley smugly e-mailed Gonzales’ Chief of Staff Kyle Sampson to report that Domenici’s office was 'happy as a clam' on learning of Iglesias’s ouster. Senior Counselor to the President Karl Rove bragged about Iglesias’s dismissal by proclaiming 'he’s gone' to the New Mexico Republican Party Chairman, who had previously complained to Rove about Iglesias."

McKay wrote that multiple investigations at the DOJ, which are said to be in the final stages, could result in "criminal charges" against former Attorney General Alberto Gonzales and other former DOJ officials involved in the dismissals "for impeding justice."

"The elements of a prima facie case of obstruction of justice are: (1) the existence of the judicial proceeding; (2) knowledge of or notice of the judicial proceeding; (3) acting 'corruptly' with intent to influence, obstruct or impede the proceeding in the due administration of justice; and (4) a nexus (although not necessarily one which is material) between the judicial proceeding sought to be corruptly influenced and the defendant's efforts," McKay wrote in the 32-page law review article. "The [federal] omnibus clause is a 'catchall' provision, which is broadly construed to include a wide variety of corrupt methods."

Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Mr. Leopold is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran.

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