WASHINGTON The House Judiciary Committee sued former White House Counsel Harriet Miers and White House chief of staff Joshua Bolten on Monday, setting up a constitutional clash over the Bush administration's refusal to provide testimony and documents about the firing of U.S. attorneys.
The lawsuit says Miers is not immune from the obligation to testify and that she and Bolten must identify all documents that are being withheld from Congress regarding what Democrats say were politically motivated dismissals of nine U.S. attorneys.
In a statement announcing the lawsuit, House Judiciary Committee Chairman John Conyers said, "We will not allow the administration to steamroll Congress."
Conyers, D-Mich., said he is confident the federal courts will agree that the Bush administration's position is at odds with constitutional principles.
The case was assigned to U.S. District Judge John Bates, an appointee of President Bush and a former prosecutor in the Whitewater criminal investigation of the Clintons in the 1990s.
The White House said House Democrats "continue to focus on partisan theater."
"The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching and we are confident that the courts will agree with us," said White House press secretary Dana Perino.
The House committee early last year subpoenaed Bolten for documents and Miers for testimony in trying to make a case that the White House directed the firing of nine U.S. attorneys because they were not supportive enough of Republicans' political agenda.
On Bush's behalf, White House Counsel Fred Fielding said such information is private and covered by executive privilege, the doctrine intended to protect the confidentiality of presidential communications.
The lawsuit pointed out that the White House is making a blanket claim of executive privilege, despite the administration saying the president was not personally involved in communications subpoenaed from Bolten and that the president was not involved in the decision to force U.S. attorneys to resign.
The House passed contempt citations by a 223-32 vote that most Republicans boycotted.
Mickey Edwards, a former Republican congressman from Oklahoma, said it was "embarrassing" that Republican members of Congress are not joining in the attempt to get the administration to respond to the subpoenas. By engaging in partisan warfare, "the Congress itself loses its power, its prestige," Edwards said.
Former House general counsel Stan Brand said it is the first time in history that Congress had become a plaintiff in a civil case against the executive branch over a White House claim of executive privilege.
A week and a half ago, Attorney General Michael Mukasey said he would not refer the House's contempt citation to a grand jury and that neither Bolten nor Myers had committed a crime.
House Speaker Nancy Pelosi, D-Calif., then announced she had given the Judiciary Committee authority to sue Bolten and Myers in federal court.
The lawsuit says:
• The record reveals numerous questionable or outright false statements to Congress and the public by other members of the administration, including purported reasons for seeking the forced resignations and the scope of White House involvement.
• Executive privilege does not cover documents whose contents are widely known, previously released or that were the subject of extensive, previously authorized testimony.
The lawsuit also says Miers' conduct is inconsistent with representations that the Justice Department's Office of Legal Counsel made to Congress in 1971 when OLC was being run by William H. Rehnquist, who later was named to the Supreme Court and later chief justice.
Rehnquist told Congress that a witness intending to invoke executive privilege may not simply ignore a congressional subpoena and fail to appear.
Conyers said the administration "simply will not negotiate towards a compromise resolution, so we must proceed."
Michael Steel, spokesman for House Republican leader John Boehner of Ohio, called the lawsuit "pandering to the left-wing fever swamps of loony liberal activists."
During the Watergate scandal, the Supreme Court confirmed the legitimacy of the executive privilege doctrine. At the same time, the court found the privilege to be qualified and rejected President Nixon's assertion of privilege over the White House tape recordings.
The court ruling prompted Nixon to surrender the tapes to prosecutors and ultimately to resign from office.
On the Net:
Justice Department: www.justice.gov
House Judiciary Committee: judiciary.house.gov/