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February 29, 2008

Mukasey Rebuffs Pelosi, Refuses to

Prosecute Bush Aides for Contempt
By Jason Leopold

As expected, Attorney General Michael Mukasey refused Friday to refer congressional

contempt citations against President Bush's Chief of Staff Josh Bolten and the president's
former counsel, Harriet Miers, to a federal grand jury, claiming that the officials did not
commit a crime when they refused to testify before Congress.
The move sets the stage for a historic legal showdown between Congress and the White
House over President Bush's far-reaching claims of executive privilege, an issue that will
ultimately be decided by the courts and could have long lasting implications for future
administrations.
"The department will not bring the congressional contempt citations before a grand jury or
take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote in a letter
Friday to Democratic House Speaker Nancy Pelosi.
Pelosi responded swiftly, stating in a news release that she has given the Judiciary
Committee authority to file lawsuits against Bolten and Miers in federal court.
"The American people demand that we uphold the law," Pelosi said. "As public officials, we
take an oath to uphold the Constitution and protect our system of checks and balances
and our civil lawsuit seeks to do just that."
Bolten and Miers were held in contempt of Congress after they failed to appear before the
House Judiciary Committee last year to testify about the firings of nine United States
Attorneys in late 2006. President Bush advised Bolten and Miers not to testify saying any
information they may have about the US attorney firings was covered by executive
privilege.
"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," Mukasey wrote Pelosi. "Accordingly," Mukasey concluded, "the
department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the
Judiciary Committee subpoenas did not constitute a crime."
Two weeks ago, the full chamber of Congress voted on contempt of Congress citation, the
first time it has done so in 25 years, and referred the matter to Mukasey for prosecution.
John Conyers, the Democratic chairman of the House Judiciary Committee, indicated at the
time the House voted on the contempt charges that a lawsuit would be filed against Bolten
and Miers if Mukasey refused to prosecute the charges.
“The Privilege Resolution introduced [February 13] follows the suggestion first made by
former Judiciary Committee chairman James Sensenbrenner last year and authorizes the
House general counsel to file a civil suit to enforce the subpoenas," Conyers said. "That
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way, if the administration refuses to enforce the contempt finding, we can take action in
the courts. . . . Although Mr. Sensenbrenner suggested a civil lawsuit as an alternative to
contempt, the courts have made clear that statutory contempt must be tried first. In a
lawsuit in the 1980s, when the Justice Department tried to get a civil court ruling after the
House had found a former EPA administrator in contempt, the court ruled that it should
'defer to established statutory procedures' on contempt and that a civil lawsuit could be
pursued only after statutory contempt remedies are exhausted. Here, a civil suit would be
filed only after the administration refuses to allow statutory contempt to go forward."
On Friday, Conyers excoriated Mukasey's decision not to pursue the matter.
"Our investigation into the firing of United States Attorneys revealed an administration and
a Justice Department that seemed to put politics first, and today’s decision to shelve the
contempt process, in violation of a federal statute, shows that the White House will go to
any lengths to keep its role in the US Attorney firings hidden," Conyers said. "In the face of
such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the
committee's subpoenas.”
In an interview recently, David Iglesias, the former US attorney for New Mexico who was
fired on Election Day in 2006 for reasons that appeared to be based entirely on partisan
politics, implored the Justice Department to allow Bolten and Miers to testify.
"Congress is exercising its legitimate oversight role in this unfinished matter," said
Iglesias, who has written a book on the ordeal, "In Justice: Inside the Scandal that Rocked
the Bush Administration," that is due to be published in June. "I implore the White House to
do the right thing and produce Ms. Miers and Mr. Bolten to the Congress."
Iglesias said documents in the case released thus far goes far beyond the realm of
circumstantial evidence and shows culpability--and perhaps criminal behavior--on the part
of several high-level former Justice Department and White House officials who were
involved in his firing and sought to cover-up their involvement. Iglesias points to a
transcript of an interview with career Justice Department official David Margolis conducted
by congressional investigators in May 2007 in which Margolis said that he participated in a
"brainstorming" session with other senior DOJ officials to come up with a reason to sell to
the public and to lawmakers in the event that questions were raised about why Iglesias
was ousted.''
In testimony before Congress last year, Iglesias said that a few weeks before the 2006
midterm elections he received telephone calls from Domenici, and the state's Republican
congresswoman, Heather Wilson, inquiring about the timing of an indictment against a
popular Democratic official in the state who was the target of a corruption investigation.
Iglesias told Domenici and Wilson he could not discuss indictments with them. Iglesias was
added to a list of US attorneys to be fired on Election Day in November 2006. The official
or officials responsible for drafting the list is still unknown.
Last April, Iglesias filed a Hatch Act complaint with the White House Office of Special
Counsel, alleging former White House political adviser Karl Rove and other Bush
administration officials may have broken the law by orchestrating his firing. That
investigation is still ongoing, but the obscure shop has hit some roadblocks. Special
Counsel Scott Bloch, a Bush appointee, said he has been unable to obtain certain
documents from the Justice Department (DOJ) to advance his probe into the firings.
John McKay, the former US attorney for the Western District of Washington who was also
fired in late 2006 for reasons that appear to have been motivated by partisan politics,
wrote in a lengthy article in the January edition of the Seattle University Law Review that
Iglesias's firing stands out among the other eight federal prosecutors because it
demonstrates "the very real prospect of improper interference with an ongoing criminal
investigation involving public corruption and the seeking of political advantage."
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"Violations of the obstruction of justice statute may have occurred and should be
investigated," McKay wrote. "Even as the role of the White House remains shrouded in its
claims of executive privilege, 23 certain White House employees appear to have been
heavily involved in the dismissal of U.S. Attorney Iglesias. In several e-mails it appears that
these officials were reacting directly to the complaints of Senator Pete Domenici (R-NM)
and the ongoing investigation into public corruption in New Mexico. For example, Deputy
White House Counsel Bill Kelley smugly e-mailed Gonzales’ Chief of Staff Kyle Sampson to
report that Domenici’s office was 'happy as a clam' on learning of Iglesias’s ouster. Senior
Counselor to the President Karl Rove bragged about Iglesias’s dismissal by proclaiming
'he’s gone' to the New Mexico Republican Party Chairman, who had previously complained
to Rove about Iglesias."
McKay wrote that multiple investigations at the DOJ, which are said to be in the final
stages, could result in "criminal charges" against former Attorney General Alberto
Gonzales and other former DOJ officials involved in the dismissals "for impeding justice."
If the DOJ's inspector general investigation concludes that further investigation into
possible federal crimes is warranted and refers the case to the US attorney's office for the
District of Columbia to probe the matter, McKay said a special prosecutor should be
appointed instead because the US attorney in DC is Gonzales's former chief of staff.
"The Justice Department must seek a special prosecutor who will be seen as independent
of the White House and of the Justice Department itself," McKay wrote.

Authors Website: www.newsjunkiebook.com

Authors Bio: Jason Leopold is the author of the National Bestseller, News Junkie, a memoir.
Mr. Leopold is also a two-time winner of the Project Censored award, most recently, in
2007, for an investigative story related to Halliburton's work in Iran.