That Was Quick

Yesterday Speaker Pelosi offered Attorney General Mukasey one week to decide whether he would prosecute Miers and Bolten for contempt of Congress.  The Attorney General apparently didn’t need that much time because he responded today that there will be no such prosecution.  Mukasey stated that “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” and therefore “the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.”

          Pelosi responded that “the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly.”   It now seems virtually certain that there will be a civil suit brought by the House, posing serious legal risks to both Congress and the executive branch.

           Before bringing suit, Pelosi will consult with the Bipartisan Legal Advisory Group (BLAG), a little known entity consisting of the House Majority and Minority Leaders and Whips.   It appears that this group will divide along partisan lines, with the Minority Leader and Whip opposing the bringing of a lawsuit.   

Here is the question, which I will endeavor to answer tomorrow:  is it possible to envision a principled compromise that would allow BLAG to vindicate the institutional interests of the House without descending into a political foodfight?

Game On!

        The Speaker has sent the certifications of contempt against Harriet Miers and Josh Bolten to the U.S. Attorney for the District of Columbia.  The Justice Department has previously stated that it will not prosecute Miers and Bolten because they were acting in accordance with presidential directives when they refused, respectively, to appear before Congress and to produce documents pursuant to subpoena.  The Speaker’s letter to the Attorney General (below) requests that the Justice Department  reconsider its position and “inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.”

        Mukasey should be furious about the position that the administration has put him in.  It is relatively easy to defend Bolten’s refusal to produce documents, but there really isn’t any plausible justification for Miers’s failure to appear before the Judiciary Committee.  Miers could have chosen to appear and simply refused to answer those questions that she deemed covered by the President’s assertion of executive privilege (as Sara Taylor did when subpoenaed to appear in the Senate).  For some reason, the administration either allowed or directed Miers to take a different path, leaving the Justice Department in a much weaker legal position as a result.


February 28, 2008

The Honorable Michael B. Mukasey
The Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W
Washington, D.C. 20530-0001

Dear Mr. Attorney General:

In accordance with 2 U.S.C. § 194 and the attached House Resolution 979 (adopted on February 14, 2008), I have today sent a certification to the United States Attorney for the District of Columbia, Jeffrey Taylor, advising him of the failure of former White House Counsel, Harriet Miers, to appear, testify and produce documents in compliance with a duly issued subpoena of a subcommittee of the House Judiciary Committee and of the failure of Joshua Bolten, White House Chief of Staff and custodian of White House documents, to produce documents in his custody as required by a duly issued subpoena of the House Judiciary Committee.

Under section 194, Mr. Taylor is now required “to bring the matter before the grand jury for its action.” The appropriate grand jury action is a criminal charge for violation of 2 U.S.C. § 192, which provides: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers . . . willfully makes default . . . shall be deemed guilty of a misdemeanor” and shall be subject to a fine and “imprisonment in a common jail for not less than one month nor more than twelve months.”

According to the testimony of your predecessor, former Attorney General Alberto Gonzales, and your recent testimony before the House Judiciary Committee, the Justice Department intends to prevent Mr. Taylor from complying with the statute and enforcing the contempt citations against Ms. Miers and Mr. Bolten. You claimed that “enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a direct adviser of his… not to appear or when he directs any member of the executive not to produce documents.” Hearing on Oversight of the Dep’t of Justice Before the H. Comm. on the Judiciary, 110th Cong. 87-88 (Feb. 7, 2008). You purported to base your view on a “long line of authority,” but cited no court decision that supports this proposition.

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

Your press spokesman has stated that you will “act promptly” to review this matter and reach a final decision. We will appreciate your acting with appropriate dispatch on this important matter. I strongly urge you to reconsider your position and to ensure that our nation is operating under the rule of law and not at presidential whim. If, however, you intend to persist in preventing Mr. Taylor from carrying out his statutory obligation to present this matter to the grand jury in the District of Columbia, we respectfully request that you inform us of that decision within one week from today, so that the House may proceed with a civil enforcement suit in federal district court.

Thank your for your prompt consideration and attention to this matter.

best regards,

Speaker of the House


February 28, 2008

The Honorable Jeffrey A. Taylor
United States Attorney
District of Columbia

The undersigned, The Speaker of the House of Representatives of the United States, pursuant to the attached House Resolution 979, One Hundred Tenth Congress, hereby certifies to you the failure and refusal of Harriet Miers, former White House Counsel, to appear, testify, and furnish certain documents in compliance with a subpoena before a duly constituted subcommittee of the House of Representatives Committee on the Judiciary. The undersigned further certifies to you the failure and refusal of Joshua Bolten, White House Chief of Staff, to furnish certain documents in the custody of the White House in compliance with a subpoena before said committee. These failures and refusals are fully shown by the certified copy of the House Report 110-423 of said committee which is also hereto attached.

Witness my hand and seal of the House of Representatives of the United States, at the City of Washington, District of Columbia, this twenty-eighth day of February, 2008.

Speaker of the House of Representatives


Clerk of the House of Representatives

Preliminary thoughts on the House GOP Ethics Proposal (Updated)

          The House Republicans have come out with an alternative to creating an Office of Congressional Ethics (as proposed by the Democratic members of the Special Task Force on Ethics Enforcement).  Although I have not seen the actual GOP proposal, the Roll Call description suggests that it has some promising elements, although further refinement is needed.

At the outset, the proposal would focus on reforming the House Ethics Committee itself, as opposed to creating a new outside entity. If nothing else, this focus recognizes the fact that the ultimate constitutional responsibility for disciplining members lies within the House itself, and cannot be outsourced to another entity. Thus whatever advantages may be obtained by creating an independent ethics office, they do not obviate the need for a House Ethics Committee that enjoys the trust and confidence of the institution and the public.

The proposal would have the members of the Ethics Committee appointed jointly by the Speaker and the Minority Leader, and would have the chairmanship rotate between the parties without regard to which one is in the majority. This idea would be to reduce partisanship and thus the types of partisan stalemates that the committee has experienced in the past.

I think that this is a good idea, but it is important to recognize reducing partisanship on the committee will not necessarily enhance the committee’s zeal to enforce the ethics rules. On the contrary, it could be argued that because the committee members would have a mutual interest in not rocking the boat, the absence of partisanship actually works in the opposite direction. Therefore, it becomes all the more important that there be mechanisms to trigger action by the committee.

The GOP proposal also suggests adding four former members to the committee, with the idea that these individuals would be more disinterested in their decisionmaking. I am not sure that the benefit of this reform would outweigh the practical and perhaps constitutional objections to the idea.

The proposal also recommends that outside complaints be allowed for the first time since 1997. As I have argued before, allowing such complaints is critical to re-establishing the credibility of the ethics process.

Under the proposal, the outside complaints would be “funneled” to the Ethics Committee through the House Inspector General. Although it is not clear from the Roll Call article, presumably the IG would perform some screening function, ie, weeding out at least clearly frivolous complaints. The IG would thus be performing a function not unlike that of the Parliamentary Commissioner for Standards, which I have suggested in earlier posts provides a good model for ethics enforcement.

Delegating this function to the IG is an interesting idea. The IG is an officer selected by the House leadership for a term of the Congress, but is normally expected to continue in that position from Congress to Congress. The IG also operates under the policy direction and oversight of the Committee on House Administration. It is not clear, therefore, that the IG has the degree of independence that would be optimal for performing the sensitive function of reviewing complaints against Members of Congress. (This is not, I hasten to add, any comment on the current IG, whom I do not know but about whom I have heard only positive things). One also one wonders how compatible this function would be with the IG’s other duties, which mostly consist of conducting financial, efficiency and similar type audits.

My personal inclination would be to vest this function in a separate and independent officer of the House, who would be appointed by the House for a non-renewable fixed term (perhaps two Congresses) on the joint recommendation of the Speaker and Minority Leader. This would give him or her the requisite independence to perform the job. I also think that this officer needs to do more than simply review complaints, but should have the authority to perform preliminary inquiries, dismiss or settle minor matters, and make reports and recommendations to the Ethics Committee itself.

Finally, the GOP proposal apparently recommends that, in order to break partisan deadlocks on the Ethics Committee, “[a]ny complaint that remains unresolved after a 90-day period would be referred to the Justice Department for investigation.” I have an admittedly knee-jerk negative reaction to this aspect of the proposal. Not all ethics matters involve illegality; some are simply inappropriate for Justice Department referral. Even with regard to complaints that do involve, or arguably involve, illegality, however, it is not desirable from an institutional perspective for the House to rely on the executive branch to perform its constitutionally assigned function of disciplining its members

UPDATE:According to an informed source, I have leapt to conclusions with regard to the function of the House Inspector General under the House GOP ethics proposal. I assumed that the IG would perform some sort of screening function with regard to outside complaints. Actually, the proposal envisions the IG merely receiving the outside complaints and logging them in for tracking purposes.

More on the Craig Admonishment

Simon Davidson, the ethics columnist for Roll Call, responded to the points I made in yesterday’s post regarding the Senate Ethics Committee’s admonishment of Senator Larry Craig.  Set forth below is our exchange of emails, reprinted with Mr. Davidson’s kind permission.

Mr. Stern:

Thank you for your e-mail regarding my column.  While I had considered the points you raise regarding the Ethics Committee’s jurisdiction prior to writing my column, I think that you articulate those points particularly well in your blog post.  My own view is that reasonable minds can differ on what exactly the Ethics Committee considered was the basis for its jurisdiction.  In fact, that was part of my point: the committee did not explicitly base its jurisdiction over purely personal conduct.  In any event, here are the conclusions I had reached regarding the specific points you raise. 

1. The committee wrote: “the conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” To me, the crucial phrase here is “together with.” On your blog, you implicitly construe “together with” to mean that the conduct to which Craig pled guilty and his subsequent conduct each independently could constitute a basis for jurisdiction. While I acknowledge that there is some ambiguity in the letter’s language, I think the more plausible reading of “together with” is that the Committee concluded that the conduct to which Craig pled guilty and his subsequent conduct jointly constitutes improper conduct reflecting discreditably on the Senate. Consider: A regular exercise routine alone does not constitute a healthy lifestyle. However, a regular exercise routine, together with a nutritious diet, constitutes a healthy lifestyle.

2. The committee’s letter cites language in the Senate Ethics Manual providing that the Senate “may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” This oft-cited language has been in the Senate Ethics Manual for years. However, in practice, the Ethics Committee has never relied upon this language in asserting jurisdiction over purely personal conduct, without some connection to official conduct. In its letter, the committee appears to go out of its way to construe Craig’s conduct as official conduct by tying it to specific Senate rules. Suppose, for example, that Craig had not flashed his Senate business card, had not challenged his guilty plea, and had obtained the committee’s pre-approval to use campaign funds for legal expenses? Would the Committee still have asserted jurisdiction over Craig? That’s the question that I think the letter leaves open.

Thanks again for your e-mail.

Kind regards,


Dear Mr. Davidson

Thank you for your thoughtful email. You make some excellent points, which cause me to refine my thinking as follows.

The committee’s reference to “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above” indicates that part of what Craig is being admonished for is the “purely personal” conduct to which he pled guilty. It is true that the use of the term “together with” leaves open the possibility that the committee would have adjudged that conduct, standing alone, as insufficient to justify an admonishment. But that is different from saying that the committee lacks jurisdiction (ie, power) to punish Craig for the conduct.

An alternative explanation, I suppose, is that the committee was really only exercising jurisdiction over the “related and subsequent conduct,” but was suggesting that the subsequent conduct merited admonishment only under the circumstances where Craig had committed the personal misconduct in the first place. One problem with that interpretation is that it makes little sense to suggest that the culpability of the “special treatment” request or the improper use of campaign funds depends on whether you are guilty of the underlying conduct.

That leaves the withdrawal of the guilty plea. There it does make some sense to say that the withdrawal of the guilty plea is improper only when one is actually guilty. But how is the withdrawal of the guilty plea any less personal than the underlying conduct itself? The committee says that the withdrawal of the guilty plea violated the ethical requirement that a U.S. Senator uphold the laws and never be a party to their evasion. But that conclusion (which seems a tad stretched, by the way) does not make the withdrawal of the guilty plea any more official than the underlying misconduct or the initial guilty plea itself.

Perhaps more importantly, when it came to directly addressing the question of jurisdiction, the committee could easily have said that it had jurisdiction only over the official aspects of Craig’s conduct or that it had jurisdiction over the personal aspects only because they related to official misconduct. But it did not do so. Instead, it pointed out that its jurisdiction extends to unofficial conduct which unfavorably reflects on the Senate as a whole.

Having said this, I agree with you to this extent. The committee clearly went out of its way to find things other than the underlying misconduct for which it could admonish the senator. For example, the idea that it was improper for Craig to show his business card and say “what do you think about that?” strikes me as rather ridiculous. I can’t imagine that the committee would have found this to be improper conduct if, say, Craig had been stopped for speeding. Similarly, as mentioned before, the withdrawal of the guilty plea seems like a shaky basis for admonishing Craig.

I suspect that this has less to do with the fact that Craig’s misconduct was personal than with the nature of the personal misconduct in question. If Craig had pled guilty to, say, kiting checks, I doubt that the committee would have been as uncomfortable admonishing him for that conduct alone. But the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators. That is different, however, from saying that committee lacks jurisdiction over purely personal matters.

Thanks again for your email and for your column, which I greatly enjoy. With your permission, I would like to post our exchange on

Best regards,

Mike Stern

Craig Admonishment

     Earlier this month, the Senate Ethics Committee issued a public letter of admonition to Senator Larry Craig.  The committee found that Senator Craig’s guilty plea to disorderly conduct in a Minneapolis airport restroom was “accurate, voluntary and intelligent.”  It therefore accepted as proven the conduct that was set forth in that guilty plea.  In addition, the committee found that when Senator Craig showed the arresting officer his business card and asked “what do you think about that?” or words to that effect, a reasonable person would view his statement as an improper attempt to obtain favorable treatment as a United States Senator. 

      The committee further found that Craig’s attempt to withdraw his guilty plea was an effort to evade the legal consequences of his initial guilty plea and therefore in violation of his duty to “uphold the Constitution, laws and legal regulations of the United States and of all governments therein and never to be a party to their evasion.”  Finally, the committee found that Craig had used over $213,000 in campaign funds to pay legal and other expenses related to the criminal conviction and ethics inquiry, but had failed to obtain the committee’s prior approval, as required by Senate ethics rules.

        Surprisingly, Roll Call’s ethics columnist, C. Simon Davidson, is questioning whether the Ethics Committee purported to exercise jurisdiction over matters of purely personal conduct.  Davidson states that “the committee admonished Craig for what it construed to be official conduct: giving the appearance of using an official position to gain special treatment, evading the law by attempting to withdraw a freely given guilty plea, and using campaign funds for legal expenses without obtaining the committee’s approval[, thus] leav[ing] open the question of whether it ever would assert jurisdiction over purely personal conduct.”

This conclusion overlooks the committee’s clear statement that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” Thus, it is evident that the committee viewed the disorderly conduct itself as reflecting discreditably on the Senate. Moreover, it is hard to see how Craig’s conduct in withdrawing his guilty plea could be any more “official” than the underlying conduct to which he pled guilty in the first place.

If there were any doubt as to the committee’s position on this issue, it should be put to rest by the committee’s direct response to the challenge made by Craig’s counsel to its jurisdiction. In rejecting counsel’s argument that it lacked jurisdiction over a misdemeanor unrelated to official duties, the committee noted that “the Senate ‘may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.’” (citing Senate Ethics Manual, 2003 ed., at 13).

As I explained in my prior post on this matter, it should be no surprise that the Senate Ethics Committee has taken the position that it has jurisdiction in this matter, even as to the personal misconduct which has reflected discredit on the Senate.