Pelosi to Mukasey: Tag. You’re It.

The Speaker writes letters to the 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. [my emphasis]

Probably, Mukasey will do as he has warned he will do, and refuse to turn this over to (the originally PATRIOT provision-appointed) Jeff Taylor. Probably, this will go no further.

But I do hope Mukasey makes his decision quickly. Given the revelations from the missing emails, it looks like Waxman should be subpoenaing Harriet to find out why she gagged Steven McDevitt to prevent NARA from learning the White House was not complying with the PRA. And John Conyers–currently the gate-keeper on impeachment–is getting mighty cranky of late; I don’t want to let that mood slip away.

27 replies
  1. Hugh says:

    Mukasey may very well let this slip but in doing so he places himself in legal jeopardy. He doesn’t have the right or the power to pick and choose when he can obey a Constitutional directive.

    • freepatriot says:

      He doesn’t have the right or the power to pick and choose when he can obey a Constitutional directive.

      and RICO has a PRETTY LONG Statue of Limitation

  2. ekunin says:

    Mukasey is in no legal jeopardy and he knows it. If the house means to pursue a civil action, it will probably be after November 2008 before the complaint gets to court. Nancy Pelosi took herself out of the tag game long ago when she took impeachment off the table. She is the one who did not do her job.

  3. bmaz says:

    The proper response would be to immediately hold an inherent contempt determination on Mukasey himself and lock him up. Throw in the root contemnors, Miers and Bolten, too for good measure. Cojones my little elected Representatives, cojones.

  4. AZ Matt says:

    Part of Conyers’ comment to Pelosi’s letter: From the Gavel

    Conyers Urges U.S. Attorney to Present Contempt Citations to a Grand Jury

    (Washington, DC)- Today, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) released the following statement in response to House Speaker Nancy Pelosi (D-CA) referring the Committee’s contempt citations against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to the U.S. Attorney for the District of Columbia, Jeffrey Taylor:

    “Now that the Speaker has referred the contempt citations against Harriet Miers and Joshua Bolten to U.S. Attorney Jeffrey Taylor, I hope the Justice Department will put the partisan manipulation of our system of justice behind it, and follow its obligation to allow this matter to be addressed by a grand jury. To do otherwise would turn on its head the notion that we are all equally accountable under the law.”

  5. klynn says:

    Nice coverage on this EW. Thanks!

    If he doesn’t make a quick decision, it’s more of a confirmation for us and legal “tight spot” for Mukasey…

    Why can’t Waxman just subpoena Harriet re McDevitt no matter what the speed Mukasey moves?

    bmaz – I’m with you -lock em up!

  6. Peterr says:

    Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury.

    Surely there is a way to compile a list of people who were cited and punished for failing to appear when served with a valid subpoena.

    I’d love to see Nancy take such a list, and read it into the Congressional Record. I don’t mean she should submit it to be included, but she should read it off, name by name, case by case, with the prosecutor’s name and date attached to each one: “Jane Doe, in the matter of the US v. Acme Industries, prosecuted by Patrick Fitzgerald, USAtty for the Northern District of Illinois, January 16, 2007. John Roe, in the matter of the US v. . . .”

  7. freepatriot says:

    hey ew, wanna solve a mystery ???

    try and figure out exactly what Harold Ickles was hired to do ???

    so far, he’s just another TOE-CAPPER

    how many people does hillary need to shoot her own toes off ???

  8. NCDem says:

    I have been reading Philip Shenon’s new book on the 9/11 Commission report and it reminded me of the incompetence of John Ashcroft who told Thomas Pickard, acting director of the FBI in 2001, that he wanted to hear no more about Osama bin Laden and Al Qaeda during the summer of 2001 and then denied a requested increase in terrorism funding in the FBI on September 10th, 2001. We all know the lingering fiasco of service by Alberto Gonzales and his connection to the US attorney firings and probably his help with the Siegelman prosecution in Alabama. Shenon also highlights his polite but obnoxious service to the President in trying to obtain documents from the Whitehouse, NORAD, or the FAA.

    Now we have Michael Mukasey who seems to have strong credentials on terrorism issues but continues to support the expansion of executive power, control and secrecy. Three attorney generals who are flawed in major constitutional issues but our Congress continues to play mail tag with them. At some point, a great investigative reporter will report on the 8 years of the Bush/Cheney administration from the point of view of the three miserable failures who have led the Department of Justice and thus our FBI and the severe consequences for the nation. It will be very depressing.

    • prostratedragon says:

      This Ashcroft? After reading all the entries there, especially July 26, and maybe figuring in his hospital bed scene a couple of years later, one might reconsider a judgement that he was just incompetent. Or at least work in a hedge.

      As to the letter, I just looked over my shoulder and still found no sign yet of the Speaker —but it’s good to see her point out that there is no Presidential privilege that allows simply disregarding Congressional subpoena, either directly or by instruction to others.

  9. AZ Matt says:

    The little note to Jeff Taylor:

    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.

  10. Ishmael says:

    Mukasey is joining his name to some pretty illustrious company if he does as expected and refuses to allow the matter to proceed to a grand jury – in the Teapot Dome Scandal, Attorney General Harry Daugherty failed to prosecute corrupt officials (including his own brother) who refused to testify to Congress, on the grounds that the Congressional inquiry into Teapot Dome did not pertain directly to congressional legislation. The Supreme Court disagreed, and expanded the power of Congress to issue contempt citations for any legislative purpose, even if that purpose was somewhat vague.

    If anyone saw the Pete Seeger special on PBS last night, the failure of Mukasey to move against Bolten and Miers will raise your ire. Seeger was convicted for contempt of congress in 1961, for refusing to name names to the HUAC on First Amendment grounds, not his 5th Amendment rights against self-incrimination. He spent a year in jail before the conviction was eventually overturned. Dangerous folksingers go to jail, but not Bushco courtiers.

  11. kspena says:

    A dandy resume you’re building for yourself, mr prez. These are the kinds of things you find in history books…

  12. bobschacht says:

    Thanks, EW!
    I’ve been eager for this to happen for months!
    Mr. AG, its your move. The spotlight is ON. Oh, and just remember, this is one for the history books. What do you want to be remembered for?

    I’m still mad at Pelosi for taking impeachment off the table, however. I call it giving aid and comfort to enemies of the Constitution.

    Bob in HI

  13. oldtree says:

    We should try to remember each day that our exercise in democracy is only that. Our country has been sold and the new AG that the hoi polloi voted in haa done just exactly what he swore he would not do. He has ignored the rule of law and should be jailed for contempt of congress now. Yet, Nancy sends him a scolding letter that Marcy rightly (and sadly) assumes will be the end of it.

    Please, I love this site and it is one of the 5 most brilliant there is. But how long can we go on believing that there will be any actions against the perpetrators of our rise as the preeminent fascist nation in the world? We have lost all our freedom and by commenting or even visiting the sites that we frequent in this vast world, we are labeled by our own government as freedom loving americans. Something that they can not tolerate in their new order.

    It might be time for some serious involvement to protect those people that are willing to speak out. Anonymity is fine when you must, but when only the government knows your identity, you can disappear.

    I refuse to believe that laws matter any longer with 2 or 3 successive AG’s that are now known to be criminals. Head of CIA that is a known criminal, How many of these examples does it take before we look and ask who the hell is left in DC to carry out the law of this land? Patrick Fitzgerald cited his impotence this week at bringing charges due to various explanations that tend to lend description to interference by the very DOJ that he answers to. And to not believe that Cheney and little scoootie didn’t have all the files from the prosecution’s case? Must we all be so naive?

    Good luck to you all. Someone smarter than I should build a registry of people that care.

    • Rayne says:

      We’re only a couple hundred years old, oldtree, take heart. We only have one or two examples to point to, like the Teapot Dome Scandal, as examples of what to do.

      We still have time to set it right. Look at how many young people have become so actively engaged in democracy; I wasn’t at that age. Hell, look at Marcy, look at me, look at so many of us who have increasingly stepped up and become more active and more visible. I wouldn’t have thought it possible 10 years ago; good gravy, everybody I knew was so much more self-absorbed during the bubble.

      The problems we face are not ones that will be solved in a handful of years; we will be lucky if the financial and economic problems only take that long to do their worst. This is a marathon, one of several lifetimes; we are still nebulous as to what a real democracy looks like in an age where we can more fully represent ourselves. Imagine the transference of the Facebook environment to every possible policy question or potential legislation; how will that shape the future?

      Look at how the people here are already actively debating this matter; 10 years ago we might not have heard of this letter from the Speaker for days (not to mention how unthinkable “Madame Speaker”) was at that time. We have already come so damned far.

      On the other hand, we should consider more frequently the regressive tactics of mobs armed with pitchforks and torches if this doesn’t go as it should. Wouldn’t that make for a lovely action shot on a Facebook page…

  14. ThadBeier says:

    You know what will happen. Surely, in your bones, you know that nothing is going to happen. Mukasey will pretend that he never got this letter.

    The Bush administration, to continue your metaphor, will never consent to being “it”, that they have to respond the the Congress.

  15. BayStateLibrul says:

    I think this is huge…
    If it weren’t for the Presidential Primaries, it should be the
    lead story for Matthews and KO…
    Where is Shuster?
    Maybe thisa is the showdown we have been waiting for!

    • tejanarusa says:

      Don’t you remember? Shuster is suspended for his stupid “pimping out Chelsea” remark. It was only a couple of weeks’ suspension, so he should be back soon.

  16. obsessed says:

    This is making me pull my hair out. How can the AG refuse to enforce a congressional contempt order?

    Wouldn’t the next move be to impeach Mukasey?

    • Praedor says:

      Impeachment, ALL impeachment, is off the table. It is no longer a quiver in the bow of Congress. Pelosi unilaterally disarmed before the most criminal Administration in history and will absolutely NOT do anything to mitigate the damage.

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