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Attorney general declines to investigate Bush advisers
WASHINGTON (CNN) — U.S. Attorney General Michael Mukasey Friday said he will not ask a federal grand jury to investigate whether two top Bush administration officials should be prosecuted for contempt of Congress.What options does that leave? Other than impeaching Mr. Mukasey, that is.House Speaker Nancy Pelosi Thursday asked Mukasey to look into whether White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers committed contempt of Congress in the investigation of the 2006 firings of several U.S. attorneys.
Pelosi said the two were unresponsive to Congress’ inquiry, while the White House argues that contempt laws don’t apply to the president or any of his staffers who invoke executive privilege.
Mukasey, a Bush appointee, agreed.
“The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime,” Mukasey wrote in a letter to Pelosi.
“Therefore 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.”
“The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime,”
Contempt of congress is only a crime if the President says it is, right? That's what they're really saying. Oh, I would SO like to see the Supreme Court rule on this. Not on the crime it's self, but how the AG's office has the right to decide when someone is in contempt of congress.
I really want conservatives to come out and say that they're really just interested in power and the ability to subvert laws when it's convenient.
And I think the other option is for the Sergeant At Arms of the US Congress to go out and arrest the people in question on the charge of Inherent Contempt. But I'd also love to see more brinkmanship on the part of the Democrats just because the Republicans deserve it.
As soon as the Democratic leadership announced that impeachment was "off the table," they sent a message that no one was truly accountable. When two parties run the game, you have to expect them to look out for each other. The Dems are probably right to assume they'll need a favor in return someday.
Impeach who, Will? Miers is not a WH staffer anymore. Bolton is a chief of staff. Neither are impeachable positions. Impeach Bush? Not likely. It may be something you'd like to see, but unwillingness to do it does not mean a political conspiracy.
Perhaps you could try reading the article. It says " Pelosi and Conyers said the Judiciary Committee anticipated Mukasey's response and is preparing to file a lawsuit in federal district court to try to enforce the committee's subpoenas of Miers and Bolten.
Please explain how this is looking out for the Republicans.
Inherent contempt would be nice, especially if Congress words the citation to avoid any suggestion that it's criminal. (Criminal gets pardons; inherent contempt is non-criminal and does not. The things you learn reading blogs!)
Impeaching Mukasey would be a really good idea right about now, because it's his job to prosecute cases for the government, including contempt of Congress.
Start at the bottom, and work up.
Wow. The law is just a big f*cking joke to these people, isn't it?
"What options does that leave? Other than impeaching Mr. Mukasey, that is."
There's also the most obvious and likely option: abject capitulation.
Josh, I was referring to the message: If you won't go after the generals, why should anyone think the colonels will be charged?
I do hope Pelosi and Reid stand up on this, at least. But they have a great talent for lowering our expectations.
I don't think Mukasey is right; he does, however, have a defensible position, due to poor drafting of the underlying statute.
That's not to say that Bolten and Miers didn't break the law — perhaps just not the version that has potential criminal sanctions. Due to a drafting error that makes it arguably unclear (at least, arguably unclear to someone looking for a loophole), the criminal contempt-of-Congress statute may not apply to US government officials who are not part of the legislative branch. The civil contempt-of-Congress statute does not have the same drafting error... but it would not be handled by the Department of Justice anyway.
The real distinction is this: In order to get jail time for the miscreants under the civil statute, a judge would independently need to order them to testify as a sanction for their civil contempt. Then, when (no "if" here!) they violate that order, they can be held in criminal contempt of a court order and jailed, without requiring DoJ participation at all. Otherwise, the most that a judge can do under the civil contempt-of-Congress statute is fine the DOBs (descendents of b*tches) and order them to comply with subpoena duces tecem (testify, and bring along all of your documents).
All of that said, what Mukasey should have done — to avoid the appearance of any conflict of interest — is refer the matter to a special prosecutor with a specific charge to determine both whether a criminal act occurred and, if so, whom to charge. Instead, he played politics by forcing the Speaker to act the same way that a purely partisan jerk would act, thereby allowing the wingnut commentators to claim exactly that... regardless of the merits.
IMNSHO, the question here is not whether Bolten and Miers were, in fact, required to appear and testify; there's no doubt, under the relevant statutes, that they were, and that they were required to assert any alleged privilege in response to specific questions from the relevant committee. It is, instead, the procedural question of what to do when they refuse, and who is responsible for taking that action. This is not an excuse for Mukasey — I think his interpretation is wrong, even if it is not so wrong that it's indefensible — but an explanation, and a preview of what might happen next.
The Sergeant at Arms for the House can plop them into a cell.
The purpose of the Department of Justice is apparently not to enforce the law.
#11:
Now, now, that's overreaching.
It's purpose is enforce the law . . . when it is not inconvenient to do so.
Write your congresscritters. Write the local paper. Make this a campaign issue. If the Republicans become associated with defending this bullshit, they lose.
Congress has its own power to arrest and detain people it finds in contempt:
I'm not certain the Capitol Guide Service under the Sergeant at Arms constitutes a sufficiently powerful armed force able to enforce the will of Congress against an unruly Executive branch that has control of the entire US military.
Even without Earl's comment, there's something kind of ominous about this. What happens when there's a new president in office, and this power is in his hands? Why doesn't this worry any of the people doing this? I can think of three answers, and I don't like any of them:
a. They honestly think this is the kind of power the executive branch should have, under Hillary Clinton or Barrack Obama as much as under George W Bush or John McCain.
b. They are worried enough about the consequences of what would be uncovered by an unobstructed investigation that they're willing to hand future Democratic presidents enormous power, risk showdowns that could damage the country, etc.
c. They are confident that they won't lose power, at least not as a party.
Is there some other explanation I'm missing? There's something about this kind of showdown of legal/political power that just flat creeps me out. I'm probably being unduly gloomy, but I can think of a lot of ways this could end up really badly for the nation. (Think of partisan rifts inside the Justice department basically causing the department to seize up, or a rift between political bosses/rank and file doing that. Or some kind of constitutional showdown over whether W can pardon them. Or sending them off overseas on an assignment, so that the congress can't get them. Or some other creepy thing I'm not thinking of. And those are the nice ways it can play out, not along the lines of "how many divisions has the Congress?"
Okay, Earl (#14), but do you really see Bush ordering the military to use force of arms in Washington DC to shield Miers and Bolten from being arrested by the Sergeant at Arms for inherent contempt of Congress?
Um, wait, this is Dubya. Let me rephrase that...
Do you see the military actually obeying such an order?
Syliva Li #16: Do you see the military actually obeying such an order?
If they don't, there are always private mercenaries.
I have seen bad politicl thrillers which have seen violent revolution in the USA, and freshly decorated lamp posts in Washington.
Once, I never thought it would happen (and at least some of the events seemed like right-wing propaganda).
ethan @ 16 -
I suspect even Blackwater is not dumb enough to accept a contract that says "Defy the will of Congress and possibly find yourselves facing US military forces when they are requested by Congress to kick your mercenary behinds after a joint session finds the Executive to be overreaching their powers, and impeaches the President and Vice-President."
While I am continually amazed by the ability of certain Republicans to put their Party ahead of their Seat in Congress*, I suspect that when push comes to shove, and the White House gets to the point of hiring mercenaries to safeguard Miers and Bolten from prosecution, that they aren't going to meekly go along with it.
And if they are willing to, and Blackwater actually accepts such a contract, and the US military won't go in and kick their asses...
...then it will likely be time for fifty-six (or more) brave Americans to pledge things like lives, fortunes, sacred honor, and all that stuff.
*One of the more pernicious things that has happened in American politics is the elevation of Party above Position - the natural state of affairs between the three Branches is, and should be, a somewhat contentious and antagonistic one, and when one Party decides that because it is "their boy" in the White House, he should be afforded all good will, that is a problem. A member of Congress should always keep in mind that part of his role is to reign in the excesses of the Executive branch - even, and especially when the guy (gal, small fuzzy dude/tte from Betelgeuse, whatever) is from the same party.
err - ethan @ 17, not 16...
(grumble mumble)
albatross @ 15
(Think of partisan rifts inside the Justice department basically causing the department to seize up, or a rift between political bosses/rank and file doing that.
Hasn't this already happened? Isn't that ostensibly why Mucousy's (stet) nomination was rushed through confirmation?
Sylvia Li @ 16
I'd like to see a company or two of the Third Herd facing off against against the Sergeant-At-Arms and a posse of deputies. They've all been doing security detail and monument guarding since forever; I don't think any of them would get itchy trigger finger. And I want to see the nation's reaction to a standoff on the Capitol steps. How many right-wing bloggers would die of apoplexy?
albatross, 15:
d. They're confident that Democrats won't act as corruptly as Republicans.
Stefan Jones #12: Sorry, you're right. The law is now an optional extra.
10, 13 I'm afraid that doesn't apply here.
My point remains this: The purpose of the special prosecutor law is to deal with alleged misconduct within the executive branch that would create the appearance of a conflict of interest if the DoJ made the charging decisions. That is exactly what we have here; and the Attorney General is empowered to call a special prosecutor even — and perhaps especially — when the legal circumstances (not just the factual ones) are unclear. Mukasey has thus, to my mind, failed his first test as Attorney General. (And he would have done so even if he had gone ahead and charged the two — there is no way to remove the appearance of a conflict of interest here, and regardless of the result it will be perceived as biased.)
albatross, #15: Until November 2006, I'd have said C without question; I think that was part of the political landscape for a long time. (cf. "creating our own reality")
At this point, I'm inclined toward B. If they can just hold out until the end of the year, that gives them time enough to establish their Swiss bank accounts, acquire nice properties in countries that don't have extradition agreements with the US, and make their travel arrangements. After that, who gives a rat's ass what happens to America? Not them -- they'll be set up for the rest of their lives, and that's all that matters.
My partner proposes a slightly different scenario: they're holding out any way they can until Jan. 19, 2009 -- a day that Bush will spend signing an unprecedented number of pardons, as one final big FU to the people who voted him in but then Turned Against Him.
He also suggests that the cure for this is a Constitutional amendment to the effect that the President cannot grant a pardon until a conviction has occurred. He claims that this could be made retroactive (to nullify those Bush II pardons) without getting into the area of ex post facto law, because how can there be a pardon if no crime has been determined to be committed? Granting presumptive pardons is a usurpation of due process.
Lee @ #26, what do you think those gigantic safes in Cheney’s office are already full of? And note that Bush transferred power to Cheney during a routine colonoscopy long enough for Cheney to write pardons as well.
the White House argues that contempt laws dont apply to the president or any of his staffers who invoke executive privilege
Meanwhile, in the other white house...
"I am shocked, shocked!"
albatross --
There is a fourth option -- Sheer blind arrogance and the belief that they, and theirs, are really not subject to law.
As Ms Helmsley said of paying taxes: That's for *little people*
Albatross @15:
I think (d) is: Clinton Rules will apply. Was Carter subject to the same rules as Nixon? Was Clinton subject to the same rules as Reagan and Bush I? Certainly not!
As soon as a Dem is in power, the Repubs expect the press to turn on a dime and hound the Dem Pres mercilessly if s/he tries to use any of these shiny new powers. All Repubs in the House and Senate will throw everything they have at said president. His/her life will be made unbearable until s/he backs down.
And I think they are right to expect this. There isn't any institutional memory that I've seen, either in the press or the legislative bodies. Not even in the courts anymore. :-(
Scott Taylor #19, your first paragraph: I hope they wouldn't do that. But considering the things they've done in Iraq and New Orleans and other locations, I don't find it hard to believe that they're capable of pretty much anything, so long as it's profitable.
ethan #31: Don't make the mistake of overestimating their competence, though. They were not only willing to lie and steamroller their way into invading Iraq, they were also incompetent enough to make a disaster of it.
Ethan @ 31
Scott Taylor #19, your first paragraph: I hope they wouldn't do that. But considering the things they've done in Iraq and New Orleans and other locations, I don't find it hard to believe that they're capable of pretty much anything, so long as it's profitable.
Oh, it may not because they don't think it wouldn't be a profitable contract, or even that they might think they have sufficient ties to the Executive Branch that they either owe the White House one, or might have no choice in the matter.
It's a simple question of risk management. The profit may be good - but the risk would likely be seen to be too high.
Even if BW were able to bring all of their forces into play (unlikely, since they are contracted to many different nations), there is still the reality that their pointy-end guys are, for the most part, light infantry (they have a handful of APCs, no heavy armor to speak of, and no air superiority capability at all). But even in an urban, light-infantry only situation, they could quickly be vastly outnumbered just by local (Virginia, Maryland, etc.) National Guard units, let alone RA or USMC units in the area surrounding Washington DC.
And there is no way to know for certain which way units would jump in that situation - Prince won't be able to count on local military commanders standing aside, or backing the Executive up in that kind of a situation (especially if large numbers of them have already said that that dog won't hunt).
Beyond any question of "can we win this isolated contract?" there is also "what are the long-term consequences if we do?" No matter what happens in Washington, that sort of an open conflict between Congress and the Executive (or their designated agents) would be the start of a larger conflagration - and one that the BW execs would have to see as being very, very dangerous for them.
In those circumstances, the only cost-effective thing to do would be to politely turn down the contract - and very quietly get everything in order to evac essential personnel and records the hell out of Dodge to a friendly off-shore basing location, in case the fit hits the shan.
That's the problem with mercenary Praetorian guards - at the end of the day, they are more loyal to their own skin and wallets than they are to your skin.
Y'all're making me a little more hopeful. Thanks.
Random thought while mopping the floor last night:
The law is an ass; that is a given. But lawlessness is an elephant.
Symbolism intentional.
abi @ 35... The law is an ass
That's something to mule over.
Serge @ 36: Where's Donkey Hotay when you need him?
Ginger @ 37... He's always off, horsing around with Mister Ed, Francis the Talking Mule, and Flicka.
Serge @ 38: Well, at least he's not trotting out the tired old cliches. I'm shire they will review the laws in a serious manner, and not go galloping off on a tangent like suffolk are -- but I'll keep this tersk.
Serge (#28) This other White House? (See also on Google Maps)
The more these types of stories come up (I remember once being shocked when Cheney said he'd refuse to come before Congress even under a subpoena), the more the question seems to be: Is there any (legal) way to force members of the executive branch to obey the law?
Or, to rephrase that, to take into account the way Congress acts, is there any way for the citizenry to force members of Congress to force members of the executive branch to obey the law?
I mean, "revolution" used to be like "impeachment" for me, triggering the same automatic dismissal of the speaker that "commie", "fascist", and "Nazi" did, but some days I think the only purpose of the Bush administration is to give those terms political-debate respectability. Or perhaps it's to convince everyone that the second amendment really is as important as the NRA's been saying all these years. I'm not sure.
I really wish impeachment wasn't "off the table", that "bipartisanship" (i.e., total submission to the minority party) wasn't only necessary for Democrats (or at all), and that I believed in higher purposes.
Epacris @ 40... Oops. Not that other white house. This other other white house.
Albatross @32: You're assuming that the results in Iraq (and Afghanistan) aren't what ShrubCo intended all along. Never mind what they claimed their goals were, I'm none too sure that assumption is still justified.
(Yeah, I'm being paranoid. I consider that a rational response to our current situation....)
David Harmon #43: I just finished reading The Shock Doctrine, which I'm pretty sure is kind of the most important book in the entire world right now, and as a result I'm convinced that the current situation in Iraq is the ideal result that Bush et al. wanted, but is a close second.
Noncompliance is the word here. This administration of thugs has raised Noncompliance to an art form.
Lee @ #26: Considering the importance of "preemptive" attacks and operations to this administration, I'm certainly not surprised they'd be strong on preemptive pardons. I'm certainly in favor of that constitutional amendment.
#41:
Is there any (legal) way to force members of the executive branch to obey the law?
Or, to rephrase that, to take into account the way Congress acts, is there any way for the citizenry to force members of Congress to force members of the executive branch to obey the law?
If half the government is corrupt *with the other half's blessing*, what's left?
Chris @#46: The Founders seem to have not anticipated the idea...
I wouldn't be so quick to blame them for negligence! The problem isn't so much that the FFs "didn't anticipate" such things, as that there was only so much they could do to forestall problems. No matter how sturdily you build a system, you can't make it completely invulnerable!
Consider the problem in security terms: In this context, the specific Constitutional restrictions represent a static defense, one meant to simply resist attack. The active side of the defenses are represented by the division of powers, on the basis that each branch would have an interest in defending its own privileges and preventing usurpations from the others.
The problem is that no set of defenses is absolute! Any static defense is vulnerable to persistent attacks that "chew it away", or seek out chinks in the armor. Active defenses can respond to such attacks, moving to shore up breaches and patch gaps... but they have their own limits, notably the ongoing need for resources. As Cicero said back in ancient Rome, "there is no fortress so strong that money cannot take it".
As I understand things, a major root of our current problems dates to the Civil War. The various conflicts within the country wound up weakening government as a whole, and a key reflection of this was that corporations gained the status of legal "personhood" -- including all the legal privileges and protections thereof.
Unfortunately, a corporation entirely lacks the moral and pragmatic constraints of a human being. What they do have, is resources (wealth, manpower, influence) vastly exceeding those of individual humans. That unholy combination set the stage for corporate actors to subvert and suborn the protections meant to shield vulnerable individuals. And that's been an ongoing process ever since, as the corporations have accrued more and more influence, and taken over more public functions.
ABC News is reporting that Pelosi is threatening to file a federal lawsuit against them. (link)
I hope that she does. This has got to stop.
David Harmon @ 47
corporations gained the status of legal "personhood" -- including all the legal privileges and protections thereof.
And none of the responsibilities and obligations. It is explicitly not required of corporations that they be good, law-abiding citizens, although their officers have to be. The loophole there is that one of the laws the officers have to obey is maintaining their fiduciary responsibilities to their corporations; a mandate for unethical and immoral action if the corporation is not also constrained.
A few months ago I suggested that the law should be changed to reduce corporations to the status of domestic animals, and that their officers should have the legal status of animal handlers, legally responsible for the actions of the corporation.
Bruce: I suggested that the law should be changed to reduce corporations to the status of domestic animals,
Ooh, I like that! Sensible and snarky too!
Were Clinton's advisors investigated after he failed to comprehend what the meaning of the word "is" is?
Dale J. Were they complicit in a crime?
Think carefully, because the definition of "sex" in that deposition were defined by the plaintiff's lawyer and Clinton didn't, contrary to common understanding, commit perjury).
Oral sex is still "sex" and I would think a Rhoades scholar like Clinton could figure that out.
Dale J: Non responsive. Were they complicit in a crime?
Terry, #54. Clinton didn't, contrary to common understanding urban legend, commit perjury
FTFY. :-) Some of us are smart enough to read a deposition.
Lee: More to the point, I read the actual law which he is alleged to have broken.
Earl @ 14:
I'm not certain the Capitol Guide Service under the Sergeant at Arms constitutes a sufficiently powerful armed force able to enforce the will of Congress against an unruly Executive branch that has control of the entire US military.
Well what you would really need is to assemble a police force under the control of Congress, on the scene with superior numbers, with special units such as SWAT if necessary, and dedicated detention facilities.
Oh, wait a minute, there already is one. The Metropolitan Police Department of the District of Columbia.
Consider Article I, Section 8 of the US Constitution:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States...Plenary authority over DC government, including the police, is strictly an Article I issue -- no such authority of any kind is mentioned in Article II for the President. It has been noted more than once (most recently by the Congressional Research Service, I believe) that The Sergeant-at-Arms would not have to hold someone cited under the inherent contempt power in the Capitol itself, but just drop them off at the DC jail. I don't see any reason that the Sergeant-at-Arms could not be authorized to request some "technical assistance" from MPDC, as well.
One nice aspect to this is that MPDC should be able to arrange for a nicely covered perp walk as well. Nifty.
Claude Muncey @ 57
MPDC should be able to arrange for a nicely covered perp walk as well.
Given their failure to appear, I think the alleged perpetrators could reasonably be considered fugitives with a flight risk, so chains would be in order. Let's call that a perp shuffle.
If anyone missed the terrifyingly candid interview Mukasey gave to NPR's Ari Shapiro, it's a must-listen.
"I'm not looking to make a mark; I'm looking to leave it unscathed," he says about his time leading the Justice Department.
Dale J: there are a lot of people who disagree with you; your declaration that oral is sex doesn't make so, any more than mine makes it not so.
CHip, #60: Among those don't count oral-genital contact as "sex" appear to be an increasing number of high-schoolers in "abstinence-only" sex education districts. They don't count heterosexual anal penetration either, and they don't use protection, and their STD rates are climbing in consequence. IMO, that's empirical evidence for the right-wing attitude in general being similar; the kids are certainly picking it up from somewhere, and home is the most likely place.
Lee, #61, I think it's more likely that they're being told that sex makes babies and they've figured out that non-vaginal methods don't. The people who are telling them that sex makes babies are so sure they'll abstain that they don't mention STDs.
And some jurisdictions consider oral or anal penetration to be "sodomy" NOT "sex." (And if you're charged with it, it carries criminal penalties, I'm not sure if it's considered a felony or misdemeanor.)
So Clinton's statement would have been accurate in those jurisdictions.
Lori: There was no juridictional issue. It was a civil case, the lawyers had gone over all sorts of terms with each other, prior to the deposition, so as to avoid confusions about who meant what.
Under the definitions in use he answered carefully, and correctly (thus avoiding the question of Pilate, "what is truth").
Second, he didn't commit perjury, which the relevant code said had to be on issues, "material to the case" at issue. So even if he had flat out lied, he still didn't commit a crime, because the question about Lewinsky wasn't material.
Terry -- (#64)
Naughty -- don't confuse Dale with facts.
They are pesky things that are not amenable to "spin."
He appears to be more comfortable with the fabrications out of whole cloth from the likes of Lush Bimbo and Alan Keyes...
Lee: reviewing things, I don't think, pleasant as the snark might be), that it really fixes it.
The common (mis)understanding is that any lie under oath is perjury, and that's not the case.
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