Statement by the Press Secretary
Today, the United States House of Representatives did something that had never been done in the entire 150-year history of the contempt of Congress statute: it voted to hold in contempt two top White House officials who had been directed by the President not to comply with House Judiciary Committee subpoenas on the basis of the President’s assertion of Executive Privilege. The officials in question are the Chief of Staff to the President and the former Counsel to the President, two of the very closest advisers upon whom a President must rely. This action is unprecedented, and it is outrageous. It is also an incredible waste of time – time the House should spend doing the American people’s legislative business.
The absurdity and unfairness of the vote on Josh Bolten, the President’s Chief of Staff, are plain. The House Judiciary Committee arbitrarily designated Mr. Bolten — in his official, not personal, capacity — as the “Custodian of Records” for documents that the Committee had subpoenaed. The Committee subpoenaed Mr. Bolten even though he is not alleged to have had anything to do with the resignations of the U.S. Attorneys. There is no allegation, no suggestion, of wrongdoing against him. Mr. Bolten’s conduct was not contemptuous of the House – far from it. He acted at the express direction of the President in the exercise of executive privilege for the purpose of protecting the institution of the Presidency. And he did so in reliance upon a thorough and well-reasoned opinion of the Solicitor General of the United States serving as the Acting Attorney General.
Ms. Miers was Counsel to the President. She too acted at the express instruction of the President in an exercise of Executive Privilege. There is no evidence of any wrongdoing on her part. The President is constitutionally entitled to the candid advice of his close advisors, including his counsel, in a manner that is free from Congressional encroachment. He is particularly entitled to such advice on a matter that is committed to the Executive’s exclusive discretion, such as the nomination and removal of U.S. Attorneys. It is clear that House Democrats want to punish Ms. Miers for no reason other than that she was the President’s top lawyer. This is as a blatant sop to the far left and shameful behavior by House Democrats.
That Mr. Bolten’s and Ms. Miers’ actions were not in the least contemptuous is further demonstrated by the extensive efforts made by the Administration in attempting to accommodate Congressional interests.
The President’s constitutional interest in the appointment and removal of U.S. Attorneys — power that the Constitution has given exclusively to the Chief Executive — far outweighs any legitimate Congressional oversight interest. Nonetheless, beginning in March of last year, the President committed to cooperating and accommodating Congress’s interests in the U.S. Attorney replacements. The President did so not because he was compelled to, but rather out of respect for Congress and its inquiry.
In the past year, DOJ has released or made available for review more than 10,000 pages of documents. More than 20 present or former DOJ officials, including the then-Attorney General, the then-Deputy Attorney General, and the Attorney General’s former chief of staff, have testified publicly, submitted to committee staff interviews, or both.
The President made an unprecedented offer to go even further by providing Congress with additional documents and to make available for interviews several former White House officials, including Harriet Miers, Deputy Chief of Staff Karl Rove, Deputy Counsel Bill Kelley, Director of Political Affairs Sara Taylor, and Scott Jennings, a Special Assistant to the President in the Office of Political Affairs.
That Mr. Bolten’s and Ms. Miers’ actions were not contemptuous is further demonstrated by this fact: the President, in an exercise of Executive Privilege, directed them not to comply and did so on the basis of a thorough, well-reasoned opinion of the Solicitor General. That opinion offers persuasive authority that the President must be able to obtain the frank advice of his closest advisors, particularly on a matter committed to the Executive’s exclusive discretion, without Congressional intervention. The underlying opinion was even described by one leading liberal law professor, Cass Sunstein, as “more than respectable.”
The Majority “Report” of the House Judiciary Committee, which served as the basis for the contempt resolution presented to the full House, is based on the flimsiest of speculation and clearly demonstrates that after all these many months, despite all of the information provided by the Administration, and all of Congress’s bluster, there is no evidence of any improper conduct by White House officials in the replacement of United States Attorneys.
The House has critically important business before it, most importantly FISA modernization legislation that the Senate passed by a wide bipartisan majority, which the House must pass before the Protect America Act expires this Saturday. It is astonishing and deeply troubling that after months of delay on passing a bill that will help our intelligence professionals monitor foreign terrorists who want to kill Americans, the House has instead turned its attention to the silly, pointless, and unjust act of approving these contempt resolutions.
Throughout history, the Executive and Legislative Branches frequently have had disputes. In every other instance, the two Branches worked out their disagreements without either the House or Senate ever approving a resolution holding any White House officials — let alone the Chief of Staff and Counsel to the President — in contempt under its statutory contempt power.
The willingness of the House to pursue a course leading to such a resolution speaks volumes about its true motives. The House Judiciary Committee approved the contempt resolutions last July, nearly seven full months ago. The full House took no action on them in that intervening period. Rather than confront their legislative obligations, the Democrats have opted to revive this stale matter to distract from their legislative failures and appeal to the far left in their party by trying to embarrass the President and his close advisors. They have instead managed to embarrass themselves by revealing their nakedly partisan motivations.
As the House is fully aware, the Department of Justice has long been of the view that the law does not require a U.S. Attorney to convene a grand jury or otherwise to pursue a prosecution of an individual who carries out a President’s instruction not to provide documents or testimony on the basis of the President’s assertion of Executive Privilege. In fact, Attorney General Mukasey himself reaffirmed this view just last week in his testimony before the House Judiciary Committee, referencing a 1995 Opinion authored by Walter Dellinger, a senior Justice Department official in the Clinton Administration, which stated that “the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert Executive Privilege.”
If the House Democrats try to bring a civil case in federal court, they will be met with opposition at the courthouse door and at every step of the way. The President’s case rests on a strong opinion from the Solicitor General, and the President would not have asserted Executive Privilege if he did not believe he would prevail in the face of attempts to challenge his decision.
So if the Democrats choose to press this dispute, we are confident that the Administration will prevail against this unprecedented and wholly unwarranted vote of contempt.List your legal jobs on the LawFuel Network