And why Congress is filing a civil contempt charges against Mukasey..
It seems that Attorney General Mukasey is taking the position that Bolten and Miers refusal to comply with a congressional subpeona does not constitute a crime.
From the CRS Report on Congress’ Contempt Power:
The Position of the Department of Justice on the Use of Inherent and/or Criminal Contempt of Congress Against the Executive Branch
The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s, and has been the basis of several recent claims with respect to pending congressional investigations.
. . . The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress’s inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:
We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege.
The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress’ inherent civil contempt powers (except with respect to the penalties imposed). Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.
This places the ball back in the Congressional hands - and the issue will be whether they force the issue with Mukasey or move onto the courts for a remedy.
http://lawprofessors.typepad.com/whitecollarcrime_blog/
3 comments:
On February 26, 2008, Congressional Representative Dana Rohrabacher of California made some very interesting observations on the House floor; *
"In my tenure as a senior member of the House Foreign Affairs Committee, both as chairman and ranking member of an investigative subcommittee, I have witnessed firsthand behavior by the Bush administration which I find deeply troubling.
The disdain and uncooperative nature that this administration has shown toward Congress, including Republican Members, is so egregious that I can no longer assume that it is simply bureaucratic incompetence or isolated mistakes. Rather, I have come to the sad conclusion that this administration has intentionally obstructed Congress' rightful and constitutional duties.
More of this article at 911blogger.com
Anon,
Thanks for sharing Rep. Rohrabacher's comments on the floor. But, it is too little too late for the Reps to speak out now against the Administration. Many of the Dems and GOPs stayed silent for so long. And many of them are speaking out now. But, the ones who kept silent and looked the other away or were Pro-Bush will have to answer to their constituents in 2009.
Sorry Dana it's beyond troubling it out right criminal. Now if a person like me setting at home reading can understand it anyone can. Musk Rat is in the position to make sure the criminals of the Bush Administration is stalled or dismissed. He is not a representative of the Justice System as that system is gone. Their are more criminals in the Bush Administration and his appointees in every department then there are in jail right now. It's a cesspool of criminals called the Bush/Cheney Team.
Most of the elected officials that are baby boomers have seen this plan before but for kick backs they act like they don't know what's happening. Richard Nixon and his Team used this plan but forgot to line the Courts and DOJ to protect those appointees who committed crimes for the Nixon Administration. One person has spoken up is John Dean who knows it well, but he Media refuses to allow him to be on the air.
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