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.