No Comment — February 15, 2008, 8:06 am

Congress Cites Bolten and Miers for Contempt–But Is the Issue Really Impeachment?

It’s been seven months since the Judiciary Committee subpoenaed White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers to appear and give evidence in connection with hearings into the firing of nine U.S. attorneys in December 2006. In July the Judiciary Committee quickly voted to cite them for contempt. And then the matter stagnated for many months as the House leadership conferred with White House lawyers about a solution. The White House reportedly said it would offer up Miers and Bolten only if they testified behind closed doors and not under oath, and with the understanding that no transcript of their remarks would be made. But most tellingly, the White House took the position that the scope of examination would be narrowly tailored so as to exclude precisely the subject matter of the inquiry: Did White House staffers interfere with prosecutors for partisan political reasons?

For instance, among the small volume of documents actually produced there are many which provide evidence of exactly that. On one document concerning the failure of Milwaukee U.S. Attorney Steven Biskupic to bring “vote fraud” prosecutions, Karl Rove has scribbled a note “Discuss w/Harriet.” In fact we know that Biskupic was on the “to-fire” list. He then began to bring a series of politically motivated prosecutions, including the case against Georgia Thompson that the Seventh Circuit dismissed as “preposterous.” And Biskupic then disappeared from the “to-fire” list. So what discussions Rove had with Miers are right at the heart of the inquiry. But the White House offer ruled that off limits. That was obviously unacceptable.

The matter seemed almost forgotten. But today it suddenly lept back onto the front page. The House issued contempt sanctions against the pair on a vote of 223-32; it also authorized a civil suit to enforce the contempt sanction, as Attorney General Mukasey previously stated he would refuse to fulfill his statutory duty to enforce the contempt sanction.

Since the Bush Justice Department views Congress’s contempt powers with contempt and has offered the White House an extraordinary opinion vouching for its right to thumb their nose at Congressional subpoenas, why has the House taken this step? After all, it’s plain that Bolten and Miers will not appear; the White House will not permit them or any other senior figures with knowledge of the U.S. Attorneys scandal (particularly Karl Rove) to speak before Congress. Moreover, assuming Congress proceeds to enforce its subpoenas by suit, the court process will not end before January 20, 2009, as Bush and Co. decamp from Washington. And why did the Congressional Republicans react in such a dramatic fashion? Minority Leader Boehner gave a dramatic statement and then led the Republicans (or all but a few dozen of them) in a march out of the chamber.

It’s possible to view all of this as a sort of tempest in a teapot. And in the end it may turn out to be just that. But all the Sturm und Drang that surrounded today’s motion points to very hardball politics. I believe that Judiciary Committee Chair Conyers decided to plow ahead on this front for a specific reason.

The Department of Justice’s internal investigation into the December 7 firings is coming to a conclusion. I am told that it is highly likely that this investigation will conclude that the decision to fire New Mexico U.S. Attorney David Iglesias was clearly motivated by improper reasons. Iglesias resisted efforts by members of the New Mexico Congressional delegation (including Heather Wilson, who joined Boehner in his infantile march to the Capitol steps) to get him to bring a prosecution of a prominent Democrat in the weeks just before the 2006 elections in order to help influence the results. Being rebuffed by Iglesias, the New Mexico Republicans went to the people they knew pulled the prosecutorial strings all across the country: Karl Rove and his staff in the White House. And that path led to Iglesias’s firing.

The investigation into the firing of the U.S. Attorneys in Phoenix, Seattle and San Diego is showing similar signs of improper tampering with prosecutions by White House figures for partisan political reasons.

I am betting that Conyers is pretty well informed about all of this and is awaiting the release of the internal Justice Department study, just as the White House and its political cronies in Justice are busily attempting to throw sticks in the spokes of the investigation to slow it down and delay the issuance of a final report with recommendations.

Now the Justice Department’s investigation focuses only on Alberto Gonzales, Paul McNulty and a handful of other senior political appointees, almost all of whom have left. It does not have the jurisdiction to address staffers in the White House like Rove, Miers and Bolten, nor indeed, President Bush.

But they are clearly within the jurisdictional remit of the Judiciary Committee. Moreover, if the Justice Department’s report implicates not just Rove, Miers and Bolten, but also Bush in the decision to fire for improper reasons—a conclusion which is now looking extremely likely—then it will be up to Conyers’s committee to press the investigation forward. In so doing, he is entitled to conduct hearings on the footing of impeachment. If he does, the executive privilege objection interposed by the White House and backed in another Constitution-defying opinion of the Attorney General, would not apply.

My guess is that the chess players are thinking several steps ahead of the game. It may or may not come to the sort of inquiry I am envisioning—that will depend in the first instance on the Justice Department’s own internal conclusions, and the pressure for the Justice Department to simply whitewash the matter may prove irresistible. But if it does come to a pointed inquiry into criminal conduct in the Oval Office relating to the dismissals, Conyers and his Committee want to be in a position to demonstrate that they have exhausted the other remedies—subpoenas and contempt citations—and have been stymied by the White House. In a sense, the White House will be forcing the opening of an impeachment inquiry by its own intransigence.

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