Patterico's Pontifications

2/29/2008

AG Mukasey: Take Your Contempt Citation and Shove It, Congress

Filed under: General — Patterico @ 8:57 pm

Via Ed Morrissey at Hot Air we learn that AG Michael Mukasey is refusing to prosecute contempt citations for Harriet Miers and Josh Bolten:

U.S. Attorney General Michael Mukasey refused on Friday to pursue contempt citations issued by the House of Representatives against a current and a former White House aide for not cooperating in a probe of the firing of U.S. attorneys.

Saying no crime was committed, Mukasey rejected a request by House Speaker Nancy Pelosi to refer the citations to a federal grand jury investigation of current White House chief of staff Josh Bolten and former White House counsel Harriet Miers.

“The Department has determined that the non-compliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime, and 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,” Mukasey said in a letter to Pelosi.

Good for him. Ed says it’s not over yet:

The next step will be for the House to file a lawsuit against the DoJ to force them into prosecuting the citations. That gets into some sticky areas of the law. The concepts of executive privilege have not fully been tested in the courts, and until now both elective branches have done their best to avoid an all-out legal confrontation.

But I think it is over. As I explained here [Yeah, at great length. — Ed. Hey, go back to Kaus’s blog!], I think it would violate the separation of powers for Congress to order DoJ to pursue a prosecution that DoJ thinks is untenable. I even debated the issue with a law professor in an e-mail exchange reproduced here; I leave it to the reader to determine who had the better of the argument.

I think we’re done here. If DoJ says there’s no case, there’s no case. End of story.

Next!

17 Responses to “AG Mukasey: Take Your Contempt Citation and Shove It, Congress”

  1. I think it would violate the separation of powers for Congress to order DoJ to pursue a prosecution that DoJ thinks is untenable

    I hope you are right.

    voiceofreason2 (23a09c)

  2. In an ideal world, Nancy & Co. would pursue this suit, loose, and be sanctioned and told to pay the legal fees of the defendant (personally).

    Another Drew (8018ee)

  3. Baseball players should have sent autographed bats instead of showing up as well.

    With a detailed instruction sheet informing of all the interesting things they can be used for.

    I hope not one single incumbent > 2 terms makes it back!

    TC (1cf350)

  4. One word Nixon

    Thomas (56c366)

  5. The “core” issue is not Executive Privilege, the core issue is responding to a Congressional request to appear before one of its Investigating Committee.

    Neither Bolton or Meirs responded to this request. Once in front of the Committee in question, they could claim Executive Privilege, dependeing on the nature of the question.

    The Investigation centers on the real possibility of obstruction of Justice, of the seven (or nine,depending on how you count) fired US Attorney’s, at least two were involved in criminal investigation of Republican Congressmen. Strikes me that Congress has valid oversight in possible obstruction of Justice, and that the President would not condone, or protect criminality.

    Wear your flag pin proudly, vote for clean government.

    Our Paul (835e92)

  6. are you suggesting that no congressional subpoena should ever be enforceable, or just that no congressional subpoena to a player on your team should ever be enforceable?

    assistant devil's advocate (c54259)

  7. are you suggesting that no congressional subpoena should ever be enforceable, or just that no congressional subpoena to a player on your team should ever be enforceable?

    I’m good with both of those. 😉

    Stashiu3 (c8e98a)

  8. “congressional subpoena”?

    Where does the Congress get its authority to issue subpoenas except, possibly, in trials for impeachment or hearings on expulsion of one of its members?

    nk (7b0075)

  9. Cant they file their own civil contempt suit directly against the people who refuse to follow the subpoenas?

    stef (3cd17c)

  10. “Where does the Congress get its authority to issue subpoenas except, possibly, in trials for impeachment or hearings on expulsion of one of its members?”

    Probably the necessary and proper clause.

    stef (3cd17c)

  11. Patterico would know more about this, but isn’t the decision to initiate an investigation and/or seek an indictment discretionary? It is unethical in my state for a prosecutor to act unless the prosecutor believes in good faith that justice will be served.

    If Mukasey does not think justice is served by going further, it is his ethical and constitutional duty to down tools. Moreover, this approach avoids a constitutional struggle.

    I do not think Congress has the power to initiate its own prosecution. That power lies solely with the Executive Branch. That Congress would try suggests they have no idea what they are doing or are just grandstanding. Probably both.

    DaSarge (d49c80)

  12. Can the judge hold him for CONTEMPT OF COURT?

    krazy kagu (171210)

  13. Contempt of the Kangaroo Court that these hearings have been?

    daleyrocks (906622)

  14. Our Paul, no one has found anything to make the claim of obstruction of justice change from the fantasy to “real”. Even the claims of involvement of the fired US attornies in investigations of Republican congressmen have long ago been debunked, check out older threads here on Patterico.

    SPQR (26be8b)

  15. And we’re off to court. Pelosi must enjoy losing.

    Pablo (99243e)

  16. “And we’re off to court. Pelosi must enjoy losing.”

    How does she lose?

    stef (a853eb)

  17. And we’re off to court.

    Ed Morrissey called it.

    Paul (d4926e)


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