House ups the ante on Gonzales

Congress is rushing headlong into its confrontation with the executive branch.

The House Judiciary Committee has voted to issue contempt citations for Joshua Bolton and Harriet Miers. If the full House approves the citations -- and it could be weeks before that occurs, thanks to Congress' upcoming summer break -- they will be referred to a U.S. attorney for possible prosecution. That will trigger a court battle when the president cites executive privilege as reason for the attorney to ignore the citations.

Although the committee vote was along party lines, that doesn't mean Republicans weren't up for a fight with Bush. James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush's executive privilege claim.

The text (pdf) of the committee memo (all 70 pages of it) outlines not only the reasons for the citations but also the Democratic case for the investigation into the prosecutor firings.

According to the WaPo summary, it's mostly a compilation of everything that has come up in this whole flap, as well as a lot of fingerpointing at Rove and a rebuttal of Bush's most recent assertion that federal prosecutors cannot undermine an executive privilege claim.

Here are a few key excerpts from the report:

Although the Supreme Court has held that even a sitting president is not immune from subpoena or from participation in civil litigation, the White House and Ms. Miers nevertheless assert that a former White House Counsel, who currently occupies no position in the federal government, is absolutely immune from compulsion even to appear before [Congress]. The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the ... firings. [They] have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts....

Further on, the memo lists what it deems improper interference in the activities of six of the fired prosecutors. And then it lists what it considers false or misleading statements by senior Justice officials, including Alberto Gonzales, Paul McNulty, Kyle Sampson, Mike Elston and others. Finally it mentions the improper political test applied to new career prosecutors by Monica Goodling.

That evidence, coupled with the failure of anyone in the administration to take responsibility for developing the list of attorneys to be fired, is Congress' justification for further investigation. Bush's response: "executive privilege." To which Congress responds:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a "balancing of interests" based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee's oversight and legislative interests should prevail.

It's a powerfully stated case, although it overreaches a bit (such as the claim of "clear evidence of wrongdoing" and a too-forceful assertion of Karl Rove's role in the firings).

The rest of the memo goes into great detail about who knew and did what, and when, along with supporting arguments and lots and lots of footnoted citations. The key questions:

If no one at the Justice Department identified [the attorneys] for firing, who did? If the reasons given to Congress and the public to support the firings are false, what were the real reasons? If the White House role was innocent and routine, why was a concerted effort made to hide it?

Put that way, doesn't this sound like it has Dick "obsessive secrecy" Cheney's fingerprints all over it?

Okay, let's no go there.

Much of the memo stresses the argument that Congress has exhausted other sources of information and now needs White House documents in order to exercise its oversight function or properly consider potential legislation. This cames into stark play on page 32, when it addresses the president's strongest defense: attorneys are political appointees that can be fired for any reason or no reason at all.

While U.S. Attorneys serve at the pleasure of the President, it is widely accepted that they should not be dismissed for improper reasons, such as to influence prosecutions or to retaliate for the exercise of prosecutorial judgment in a manner that was not beneficial to a particular political party. Based on the ongoing investigation, Congress may wish to consider some limitation on removal of U.S. Attorneys ... in the middle of a presidential term.

Note the angle of attack. Yes, U.S. Attorneys are political appointees. But they're supposed to be relatively independent, and the only reason they're political appointees is because Congress allows it. Further, Congress sets the rules for such appointments. If the hiring or firing process is being abused, Congress needs to know so it can change the rules if necessary. Their appointee status and current law may shield the administration from criminal charges, but it does not protect the administration from oversight.

That strikes me as a pretty powerful argument.

I invite our resident Bush supporter to rebut the case, with one request: focus on materially significant matters, not minor quibbles such as those I've already outlined, like the as-yet-unproven assertion that the whole thing originated with Rove.

Gonzales, politics, midtopia