Just to complete the theme of the day, Michael Mukasey said today that if Congress passed contempt citations against current and former White House officials based on their refusal to respond to subpoenas, the Justice Department would not enforce them, as federal law instructs.
Rep. Robert Wexler (D-FL) was the one who first popped the question. If Congress passed a citation against White House chief of staff Josh Bolten, who, along with former White House counsel Harriet Miers and Karl Rove, refused to show up when subpoenaed by Congress as part of the U.S. attorneys investigation — would the DoJ enforce it?
Mukasey’s simple answer was “no.” Enforcing the contempt citation is “not permitted when the president directs a direct adviser of his, somebody who directly advises him, not to appear or when he directs any member of the executive not to produce document.”
This is not much of a surprise. The administration has been saying this since last summer. And Mukasey indicated some wariness on the question during his confirmation hearing — although he said he hoped he wouldn’t have to make that decision.
So now Congress knows what the answer will be if the Congressional leadership ever decides to bring it to a vote.
WEXLER: Thank you very much, Mr. Chairman.
Welcome, Mr. Attorney General. Thank you for being here.
I would like, with your permission, to go back to an issue raised by Mr. Berman, which is this administration’s failure to comply with congressional subpoenas.
WEXLER: This unprecedented obstructionist policy I think is best exemplified by the refusal of White House Chief of Staff Joshua Bolten and the former White House counsel, Harriet Miers, to even appear before this committee to answer legitimate questions about the firing of nine U.S. attorneys.
As I know you are aware, on July 25th of this past year, this committee approved contempt citations for both Mr. Bolten and Ms. Miers for their unprecedented refusal to appear before this committee.
Sadly, this behavior, abuse of power, in my mind, by this administration, is a pattern of limitless executive branch usurpation of authority. We have experienced endless executive privilege claims in the areas regarding the U.S. attorney firings, illegal wiretapping, and, of course, in the most notorious case, where the executive privilege got to the ludicrous point of Vice Percent Cheney arguing that he wasn’t even a part of the executive branch in order to avoid a Freedom of Information request.
These abuses of executive power and the fact that the White House still refuses to provide any answers whatsoever to subpoenas is one of the primary reasons I have called for impeachment hearings regarding the vice president of the United States.
I think it’s unfortunate, I think the American people lose in a big way, but I believe — by the administration not providing information — but I believe that impeachment hearings are the only way to actually obtain answers from this administration.
With that context, I’m curious, have you been instructed by the president of the United States to enforce or not to enforce contempt citations issued by the Congress?
MUKASEY: Respectfully, I cannot go into and will not go into, by way of affirmant or denial, any conversations that I’ve had with any other member of the executive on that subject or related subjects.
I should say that there is a long line of authority, going back several administrations, back to the Clinton administration and beyond, that says that the enforcement by way of contempt of a congressional subpoena is not permitted when the president directs a direct adviser of his, somebody who directly advises him not to appear or when he directs any member of the executive not to produce document.
That much said, there is a long history as well of cooperation and accommodation between branches, between Congress and the executive in accommodating one another’s needs so that we don’t have to come into collision in that fashion.
WEXLER: Thank you, Mr. Attorney General.
Can you tell me the individual that President Clinton instructed not to even appear before this Congress?
MUKASEY: Walter Dellinger rendered an opinion respecting the reach of executive privilege. I can’t sit here…
WEXLER: I didn’t ask about opinions. I’m asking if President Clinton instructed any individual in the Clinton administration not to appear before Congress.
MUKASEY: I do not know that.
WEXLER: OK. There is nobody. This is an unprecedented act where the president of the United States has taken the position that a high-level administration official should not even appear.
WEXLER: And I asked — I’ll ask it more generally, then — have you been instructed to enforce or not enforce congressional citations?
MUKASEY: I will give the same answer that I gave before, which is that conversations between executive branch members are privileged. And that doesn’t mean that I have or have not.
WEXLER: OK, fair enough.
Should Congress pass a contempt citation, will you enforce it?
MUKASEY: A contempt citation of…
WEXLER: With respect to the subpoenas, with respect to Mr. Bolten?
MUKASEY: If you’re talking about a contempt citation based on Mr. Bolten’s failure to appear…
MUKASEY: … in response to a direction by the president that he not appear, the answer is no. Because he can’t violate that request.
WEXLER: Are you the people’s lawyer, as you said to the Senate, or are you the president’s lawyer?
MUKASEY: I’m the attorney general of the United States. And it’s my obligation to enforce all legally binding precedent.
WEXLER: Thank you, Mr. Chairman.