Authorizing the Committee on the Judiciary to initiate or intervene in judicial procedings to enforce certain subpoenas.

Madam Speaker, will the gentlewoman yield?

I hope the gentlewoman will remain on the floor so that on my time I will be able to yield for a colloquy.

Madam Speaker, I would ask the chairman of the Subcommittee on Commercial and Administrative Law, who has oversight of this matter and which committee I rank on, to remain on the floor so we could have a colloquy on this issue.

It appears that she has left the floor. That's unfortunate. Her response to my inquiry about yielding was that she didn't have enough time, and we are standing here today with very little time to debate an issue that is dramatically important. It's important for this institution, and, by the way, people on both sides of the aisle have said and the Speaker and majority leader have both made a point of how important this issue is to this body. It is vitally important to me that we retain the rights of this body as it relates to administration, whether that's a Republican administration or Democratic administration.

In his opening statements, Mr. Diaz-Balart gave a quote from former Attorney General Janet Reno in which she said there was no right to do what we're trying to do today. I would have loved to have asked the chairman on the Subcommittee on Commercial and Administrative Law if she thought that was the case or if she disagreed with what the scope of the right of the administration is to not appear.

Obviously, there is a sense in this case that we ought to get something done; and, in fact, we have done a great deal. We have had hundreds of hours of depositions, literally tens of thousands of pages, tens of thousands of e-mails. We have asked questions of everyone involved in the matter in the case. And what have we come up with? I wanted to ask the chairman what the evidence we are going to present to the U.S. Attorney is that he can take and say, I have a need to get this information from these people in the administration who won't show up to the House. I have a need to understand these facts which seem to be in confusion. I have a need to decide what between these two different stories is the truth.

But we haven't said that to him. We don't have evidence that we can give the U.S. Attorney. What we are giving to him is a desire to continue a witch hunt which has produced up to today zero, nothing, as far as I can tell; and I've been in every meeting, every hearing, and followed on every single deposition that we have had. There is nothing that indicates that anybody has lied or that there is a reason that the White House has been involved. And, therefore, there is no reason that I can understand, and I have asked many times on the record in committee hearings what those reasons are, what it is, what the discrepancies, what the problems are for which we need to subpoena people in the White House and create a showdown, a showdown between our institution and the White House. And I ask the gentleman, as the chairman of the committee has just risen to his feet, and I would love to yield to him if he is willing to answer that question: What are the discrepancies?

Reclaiming my time, Madam Speaker, I appreciate the gentleman's position. The gentleman has said that eloquently in the past on many occasions. But we are now talking about getting a subpoena, enforcing a subpoena in a criminal process against people for whom we have no evidence, as far as I can tell, and I will be happy to yield to the gentleman if he has evidence, no evidence that they have been involved.

There are no discrepancies in the testimony that we have had before us, is there?

Reclaiming my time, Madam Speaker, I appreciate the gentleman's candor, and I appreciate the very gracious way the gentleman has handled this whole investigation. But it comes back down to this: we have no evidence.

Let me just finish by saying that having seen this, if there was a conspiracy, and I know that the majority believes there is something evil that is happening out there, then we ought to have given enough time and enough context to be able to track that down and prove that this administration has done something wrong.

As opposed to what the gentleman has just said, we have had a number of statements by the chairman of this committee saying that there is evidence of corruption. But we have had no evidence of corruption, none at all adduced anywhere from all the investigations we have done, and there is no basis for these contempt citations. I ask that we vote against them.

Cooper & Kirk,

Washington, DC, December 4, 2007.

Hon. Lamar S. Smith,

Ranking Member, Committee on the Judiciary, House of

Representatives, Washington, DC.

Dear Mr. Smith: We write in response to your request for

our views regarding the legal issues raised by the Judiciary

Committee's resolution recommending that the House of

Representatives find Harriet Miers and Joshua Bolten in

contempt of Congress. Each of us has had substantial

experience in the Executive Branch, including in the Office

of Legal Counsel. Charles J. Cooper served as Assistant

Attorney General for the Office of legal Counsel from

November 1985 through July 1988. Howard C. Nielson, Jr.

served as Deputy Assistant Attorney General for the Office of

Legal Counsel from June 2003 through August 2005. In

addition, our law firm has successfully litigated a number of

significant separation of powers cases.

We have reviewed the opinions of the Justice Department

regarding the assertion of executive privilege and

testimonial immunity in response to the Miers and Bolten

subpoenas. We have also reviewed the committee report

relating to this matter, the additional views of the Chairman

and Subcommittee Chair, and the minority views. The positions

asserted by the Administration reflect the longstanding and

considered views of the Executive Branch, views repeatedly

affirmed by Administrations of both parties. These views were

held during our tenures in the Office of Legal Counsel, and

we continue to believe that they are sound. Moreover, we

believe that a decision by the House to hold Ms. Miers and

Mr. Bolten in contempt would likely be a legally futile

gesture that could ultimately undermine Congress's ability to

obtain information from the Executive Branch.

As an initial matter, even if the House votes to hold Ms.

Miers and Mr. Bolten in contempt, and even if a contempt

citation is referred to the appropriate United States

Attorney, the United States Attorney will have no choice but

to decline to take action on the matter. It has long been the

position of the Executive Branch that ``the criminal contempt

of Congress statute does not apply to the President or

presidential subordinates who assert executive privilege.''

Application of 28 U.S.C. 458 to Presidential Appointments of

Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (opinion of

Assistant Attorney General Walter Dellinger). As then-

Assistant Attorney General Theodore B. Olson explained the

position of the Executive Branch in 1984:

``First, as a matter of statutory interpretation reinforced

by compelling separation of powers considerations, we believe

that Congress may not direct the Executive to prosecute a

particular individual without leaving any discretion to the

Executive to determine whether a violation of the law has

occurred. Second, as a matter of statutory interpretation and

the constitutional separation of powers, we believe that the

contempt of Congress statute was not intended to apply and

could not constitutionally be applied to an Executive Branch

official who asserts the President's claim of executive

privilege in this context.''

Prosecution for Contempt of Congress of an Executive Branch

Official Who Has Asserted a Claim of Executive Privilege, 8

Op. O.L.C. 101, 102 (1984); see also id. at 119, 129

(documenting similar positions taken by the Eisenhower and

Ford Administrations).

While the Chairman and Subcommittee Chair note that Justice

Department opinions such as the Dellinger and Olson memoranda

are not binding on Congress or the Judiciary, such opinions

are binding on members of the Executive Branch--including the

United States Attorney to whom a contempt citation would be

referred. Furthermore, because a prosecutor's ``decision

whether or not to prosecute . . . generally rests entirely in

his discretion,'' Wayte v. United States, 470 U.S. 598, 607

(1985), it is highly unlikely that Congress could obtain any

sort of judicial review of the United States Attorney's

refusal to submit the contempt citation to a grand jury.

Assuming Congress could somehow obtain judicial review of

the claim of executive privilege, we believe that it could

not overcome that claim on the facts presented here. To be

sure, there is a paucity of judicial authority resolving

executive privilege disputes between Congress and the

Executive; still, the following factors should persuade a

court to uphold the claim of executive privilege here.

First, the threshold arguments that executive privilege has

not been, or cannot be, properly invoked to protect the

communications at issue here appear insubstantial. The

Chairman and Subcommittee Chair have identified no

authority--and we are aware of none--requiring the Executive

Branch to submit a privilege log to sustain a claim of

executive privilege in a legislative proceeding. The letter

sent to Chairman Conyers by Counsel to the President

Fielding, written ``at the direction of the President'' to

``advise and inform [Congress] that the President has decided

to assert Executive Privilege,'' Letter of Fred F. Fielding

to Chairmen Leahy and Conyers at 1 (June 28, 2007), plainly

suffices to invoke executive privilege under controlling

precedent. See In re Sealed Case, 121 F.3d 729, 744, n.16

(D.C. Cir. 1997). And In re Sealed Case clearly establishes

that executive privilege extends to ``communications

of presidential advisors which do not directly involve the

President,'' id. at 751, and protects ``communications

that these advisors and their staff author or solicit and

receive in the course of performing their function of

advising the President on official government matters''--

whether or not the President is aware of those

communications. Id. at 752. Given the essential role of

the President in appointing and removing United States

Attorneys, communications to or from senior presidential

advisors regarding the replacement of United States

Attorneys plainly fall within the scope of the privilege

recognized by In re Sealed Case. As the D.C. Circuit

explained, where ``the President himself must directly

exercise the presidential power of appointment and removal

. . . there is assurance that even if the President were

not a party to the communications over which the

government is asserting presidential privilege, these

communications nonetheless are intimately connected to his

presidential decisionmaking.'' Id. at 753.

Second, there is nothing novel or unprecedented in the

claim of privilege here. On the contrary, many historical

precedents support the Administration's refusal to disclose

confidential communications and deliberations relating to the

appointment or dismissal of executive officers. For example,

as early as 1886, the Cleveland Administration rejected

Congress's attempt to obtain communications relating to the

dismissal of a district attorney (the historical predecessor

of today's U.S. Attorneys). As President Cleveland explained,

``the documents related to an act (the suspension and removal

of an Executive Branch official) which was exclusively a

discretionary executive function.'' History of Refusals by

Executive Branch Officials to Provide Information Demanded by

Congress, 6 Op. O.L.C. 751, 767 (1982) (opinion of Assistant

Attorney General Theodore B. Olson); see also id. at 758-759

(discussing similar refusals to provide information regarding

the appointment or removal of executive officers by the

Jackson and Tyler Administrations). Furthermore, D.C. Circuit

precedent addressing executive privilege expressly recognizes

that ``confidentiality is particularly critical in the

appointment and removal context.'' In re Sealed Case, 121

F.3d 729, 753 (D.C. Cir. 1997).

Third, when the judiciary has adjudicated executive

privilege disputes between Congress and the Executive, it has

required Congress to establish that the information it seeks

``is demonstrably critical to the responsible fulfillment of

[Congress's] functions'' to overcome even a generalized claim

of executive privilege. Senate Select Committee on

Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731

(D.C. Cir. 1974) (en banc). To satisfy this burden, it is not

enough for Congress to show that the information it desires

``may possibly have some arguable relevance to the subjects

it has investigated and to the areas in which it may propose

legislation.'' Id. at 733. Rather, it must identify

``specific legislative decisions that cannot responsibly be

made without access to materials uniquely contained in'' the

documents or testimony it seeks. Id. Furthermore, decisions

such as United States v. Nixon, 418 U.S. 683 (1974), and In

re Sealed Case that limit executive privilege to accommodate

the special needs of the criminal justice system offer little

support for Congress here. As the D.C. Circuit has explained:

``There is a clear difference between Congress's

legislative tasks and the responsibility of a grand jury, or

any institution engaged in like functions. While fact-finding

by a legislative committee is undeniably a part of its task,

legislative judgments normally depend more on the predicted

consequences of proposed legislative actions and their

political acceptability, than on precise reconstruction of

past events; Congress frequently legislates on the basis of

conflicting information provided in its hearings. In

contrast, the responsibility of the grand jury turns entirely

on its ability to determine whether there is probable cause

to believe that certain named individuals did or did not

commit specific crimes.''

Senate Select Committee, 498 F.2d at 732. Cf. Nixon, 418

U.S. at 713 (``Without access to specific facts a criminal

prosecution may be totally frustrated.'').

Given the voluminous documentary evidence and testimony

already provided by the Executive Branch--not to mention the

additional documents and testimony that the White House has

offered to make available in attempt to resolve this

controversy, see e.g., Letter of Fred F. Fielding to Chairmen

Leahy and Conyers at 1-2 (June 28, 2007)--it seems clear the

lingering factual ambiguities identified by the Committee

Chairman and the Subcommittee Chair are inadequate to

overcome even a generalized claim of executive privilege

under controlling precedent. And a judicial determination to

that effect would plainly prejudice Congress's ability to

obtain sensitive information from the Executive Branch not

only in this investigation but in future investigations as

well.

The Justice Department's determination that Ms. Miers is

immune from compulsion to testify before Congress likewise

reflects the longstanding and consistent position of the

Executive Branch. As Attorney General Reno explained in a

formal opinion to the President, ``It is the longstanding

position of the executive branch that `the President and his

immediate advisors are absolutely immune from testimonial

compulsion by a Congressional committee.' '' Assertion of

Executive Privilege with Respect to Clemency Decision, 23 Op.

O.L.C. 1, 4 (1999) (quoting Memorandum from John M. Harmon,

Assistant Attorney General, Office of Legal Counsel, Re:

Executive Privilege at 5 (May 23, 1977). This view is not

only that of the current Administration and the Clinton

Administration. As documented in Attorney General Reno's

opinion, this view also reflects the position of the Reagan,

Carter, and Nixon Administrations. See id. (collecting

opinions from Assistant Attorneys General Theodore B. Olson,

John M. Harmon, Roger C. Crampton, and William H. Rehnquist).

This view also reflects the position of the Johnson and

Truman Administrations. See History of Refusals, 6 Op. O.L.C.

at 771-72, 777-78. And as documented by the Justice

Department in its opinion regarding Ms. Miers, the Executive

Branch--including, again, Administrations of both parties--

have long taken the position that the same immunity extends

to former Presidents and their Advisors. See Memorandum from

Stephen G. Bradbury, Principal Assistant Attorney General

Office of Legal Counsel, Re: Immunity of Former Counsel to

the President from Compelled Testimony at 2-3 (July 10, 2007)

(documenting positions taken by the Truman and Nixon

Administrations).

In short, we believe the President's assertions of

executive privilege and testimonial immunity in this instance

are entirely constitutionally sound. We also believe that a

determination by the House to hold Mr. Bolten and Ms. Miers

in contempt of Congress would be futile as a legal matter and

might ultimately prejudice Congress's ability to obtain

information from the Executive Branch.

Sincerely,

Charles J. Cooper.

Howard C. Nielson, Jr.

Madam Speaker, I would like to thank the gentlelady from New York (Ms. Slaughter) for the time, and I yield myself such time as I may consume.

Madam Speaker, I was in the funeral of our distinguished friend and colleague, Congressman Lantos, someone whom I admired very, very much and who was a personal friend. I was standing by the ranking member of the Rules Committee.

At the time during the funeral, the House was in recess subject to the call of the Chair under the understanding that we would not come back into session until after the funeral. And I was most disturbed and hurt and pained when, even though the funeral was still proceeding and distinguished guests were speaking, the bells rang that the House was going back into session and I had to leave.

Because of my obligation today, I have the assignment, as a member of the Rules Committee, to be here during this rule. I had to leave the funeral to be here today. It's most unfortunate, and I'm very, very sorry that the day has begun in that ultimately unfortunate fashion.

Madam Speaker, today the majority proposes that the House consider a rule that, according to the Parliamentarian, is unprecedented in the history of this institution. It will prevent any and all debate on two contempt motions against former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten.

A contempt resolution is a privileged matter because it directly concerns the constitutional rights and privileges of

the House. Chapter 17, section 2 of House Practice states, ``Such a resolution may be offered from the floor as privileged, because the privileges of the House are involved.''

The action of the majority today is most unfortunate. Never before in the history of this House has a contempt resolution, one of the highest questions regarding the rights and privileges of this institution, been treated in such an underhanded manner. If this rule is adopted, there will be no debate, no vote, and the contempt resolutions will magically and automatically be hereby adopted when this rule is adopted.

Now, if the majority believes the contempt resolution to be correct, the just and proper course of action to assert the rights of this institution would be to debate and vote on the resolution.

The majority leadership is subverting the rights of every Member of this House, allegedly in order to assert the rights of this House. The irony can escape no one. These are the constitutional rights of this institution that are in question, and not one Member of this institution is going to be allowed to discuss it or vote, to have a vote on these resolutions.

The majority's attempt to rush this contempt resolution through the House will have repercussions that many Members may not be aware of. And so I urge my colleagues to pay close attention because, by this action, the House majority risks causing great harm. It risks causing grave harm and undermining Congress's oversight authority for generations to come, and here is why.

The administration is claiming executive privilege, and any attempt to force testimony from the President's former counsel and his Chief of Staff will be fought by the administration within the courts. This could very possibly lead to the courts ruling that Congress does not have civil contempt authority, for example; that the U.S. Attorney, for example, does not have to prosecute criminal citations against executive officials or that the President's senior advisors are absolutely immune from compelled testimony before Congress. Any of those rulings would weaken Congress's ability to conduct oversight in the future, and a weakened Congress means a strengthened executive.

This is not an extreme or farfetched theory, Madam Speaker. Administrations from both parties have claimed executive privilege for many decades. The former Attorney General, for example, Janet Reno, stated, and I quote, ``the President and his immediate advisors are absolutely immune from testimonial compulsion by a congressional committee, because subjecting a senior Presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to his constitutionally assigned functions.''

What the majority is doing today is needlessly tempting a court loss that could gravely undermine Congress's oversight authority, the very authority the majority is allegedly seeking to protect. If Congress loses in the courts, we could forever disable one of our most important powers, the power of oversight. And for what in return, Madam Speaker? Harriet Miers is no longer with the administration; Alberto Gonzales is no longer Attorney General. But the majority, with its action today, risks quite a bit.

Let's remember, Members will not even get the opportunity to vote on these resolutions today. And that's not only uncalled for, but absolutely unprecedented. Members will only be able to vote on this rule. Once the rule passes, so do the two resolutions and so does the majority's gamble.

So, back in July, the Judiciary Committee cited both Mr. Bolten and Ms. Miers for contempt of Congress. Now, here we are, 8 months later, considering these two contempt resolutions, but not really, just the rule. By passing the rule, automatically those contempt resolution will be passed, after an emergency Rules Committee meeting last night.

So the question is, why the rush? For some reason the majority feels that after 8 months, now this is a pressing issue. But I can think of a large list of other issues that I feel that Americans would rather we address; none more than considering the FISA bill that the Senate approved this week to give the administration the ability to protect the United States from terrorist attacks.

The tragic events of September 11, 2001, taught us many lessons, and one of the lessons we learned that day was that our Nation must remain aggressive in our fight against international terrorism. We must always stay one step ahead of those who wish to harm America, and now is not the time to tie the hands of our intelligence community. And the majority seeks to leave today and go home without addressing this issue.

The modernization of the foreign intelligence surveillance into the 21st century is a critically important national priority, and I'm pleased that several of my colleagues on the other side of the aisle agree as well.

On January 28, 21 members of the Blue Dog Coalition sent a letter to the Speaker in support of the Senate FISA legislation. The letter states, and I quote, ``The Senate FISA Rockefeller-Bond legislation contains satisfactory language addressing all these issues, and we would fully support the measure should it reach the House floor without substantial change. We believe these components will ensure a strong national security apparatus that can thwart terrorism across the globe and save American lives here at home.''

Madam Speaker, I will insert the letter sent by the Blue Dogs to the Speaker into the Record.

Dear Madam Speaker: Legislation reforming the Foreign

Intelligence Surveillance Act (FISA) is currently being

considered by the Senate. Following the Senate's passage of a

FISA bill, it will be necessary for the House to quickly

consider FISA legislation to get a bill to the President

before the Protect America Act expires in February.

It is our belief that such legislation should include the

following provisions: Require individualized warrants for

surveillance of U.S. citizens living or traveling abroad;

Clarify that no court order is required to conduct

surveillance of foreign-to-foreign communications that are

routed through the United States; Provide enhanced oversight

by Congress of surveillance laws and procedures; Compel

compliance by private sector partners; Review by FISA Court

of minimization procedures; Targeted immunity for carriers

that participated in anti-terrorism surveillance programs.

The Rockefeller-Bond FISA legislation contains satisfactory

language addressing all these issues and we would fully

support that measure should it reach the House floor without

substantial change. We believe these components will ensure a

strong national security apparatus that can thwart terrorism

across the globe and save American lives here in our country.

It is also critical that we update the FISA laws in a

timely manner. To pass a long-term extension of the Protect

America Act, as some may suggest, would leave in place a

limited, stopgap measure that does not fully address critical

surveillance issues. We have it within our ability to replace

the expiring Protect America Act by passing strong,

bipartisan FISA modernization legislation that can be signed

into law and we should do so--the consequences of not passing

such a measure could place our national security at undue

risk.

Sincerely,

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 4 minutes to the distinguished ranking member of the Judiciary Committee, Mr. Smith of Texas.

Madam Speaker, I yield 2 minutes to the distinguished minority whip, Mr. Blunt of Missouri.

Madam Speaker, I yield 2 minutes to the distinguished ranking member of the Rules Committee, Mr. Dreier of California.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

Madam Speaker, I would remind our colleagues that one of the reasons why the minority is outraged with the conduct of the majority today is that we are not even allowed to debate nor vote on the contempt resolutions, but rather on a rule that will self-adopt, automatically adopt even resolutions of this magnitude of importance; totally unprecedented and uncalled for.

Madam Speaker, at this time, I yield 2 minutes to the distinguished gentleman from Wisconsin (Mr. Sensenbrenner).

Madam Speaker, I yield 2 minutes to the distinguished Member from California (Mr. Daniel E. Lungren).

Madam Speaker, I yield 4\1/2\ minutes to the gentleman from Utah (Mr. Cannon).

Madam Speaker, I yield 2 minutes to the distinguished gentleman from Ohio (Mr. Chabot).

Madam Speaker, I would ask the distinguished chairwoman how many speakers she has remaining.

I reserve at this time.

I continue to reserve, Madam Speaker.

I continue to reserve.

Madam Speaker, I continue to reserve.

I would ask the distinguished chairwoman if she has no other speakers, obviously besides herself.

Actually I will yield myself 2 minutes at this time.

The actions of the majority today are unprecedented. We have checked with the House Parliamentarian, and they are absolutely and totally unprecedented, that privileged resolutions would be taken to the floor in this fashion, in effect, avoiding even the floor by virtue of the fact that when the rule is passed, the rule that we are debating, automatically the two privileged resolutions of contempt will be considered adopted. That is absolutely unprecedented as well as uncalled for.

And the nature of the actions of the majority today are most, most unfortunate. I had the recent opportunity to speak at Florida International University's law school. Professor Levitt asked me to speak there about the rule of law. In studying, restudying the issue, the rule of law, I stressed how the independence of the judiciary is perhaps the key, or certainly one of the fundamental keys, to the rule of law. And judicial restraint has permitted the judiciary to remain independent throughout these two-plus centuries. All of the branches, Madam Speaker, must exercise restraint.

And the actions of the majority today manifest the opposite, not only restraint, but I would say unprecedented, uncalled for, an unprecedented and uncalled for manner of dealing with even an issue of this importance.

As I stated, the majority is not even allowing debate on the resolutions of contempt, not even permitting votes on the resolutions of contempt.

Madam Speaker, I will insert into the Record from today's New York Times, ``Time to Vote Contempt.''

[From the New York Times, Feb. 14, 2008]

Time To Vote Contempt

Alberto Gonzales may be out, but the country is still

waiting for a full accounting of how he and his White House

patrons cynically politicized the Justice Department.

Congress is rightly asking questions about the actions of yet

another United States attorney: New Jersey's Christopher J.

Christie. The House also needs to stop procrastinating and

vote to hold witnesses in contempt for refusing to testify in

the wider scandal.

Federal prosecutors must be scrupulously nonpartisan. Mr.

Christie, a Republican activist who got his job despite a

lack of trial and criminal-law experience, has gone up to the

line of acceptable behavior--and possibly crossed it.

He began an investigation of Senator Robert Menendez, a New

Jersey Democrat, late in a hard-fought election campaign. The

charges now appear baseless, but at the time the news

provided a big boost to Mr. Menendez's Republican opponent.

Mr. Christie went against a long Justice Department

presumption against opening investigations or bringing

indictments right before an election, to avoid affecting the

outcome.

There are also questions about Mr. Christie's decision to

award, without competitive bidding, a lucrative contract to

monitor a company accused of consumer fraud. The winner?

Former Attorney General John Ashcroft, an influential

Republican who was once Mr. Christie's boss. Senate and House

leaders have asked the Government Accountability Office to

investigate.

Some of the people who likely know the most about the role

politics has played in the Bush Justice Department have

defied Congressional subpoenas to testify. Joshua Bolten, the

White House chief of staff, and Harriet Miers, the former

White House counsel, contend that they are protected from

testifying by executive privilege. That is not enough. They

have a legal obligation to appear before Congress and plead

that privilege to specific questions.

The House Judiciary Committee voted in July to hold Mr.

Bolten and Ms. Miers in contempt. The House's Democratic

leadership has been trying to figure out the pros and cons

ever since. The public needs to hear the testimony of these

officials (along with Karl Rove, who is also refusing to

appear), and the full House should vote as quickly as

possible to hold them in contempt.

The House should also approve a resolution authorizing the

Judiciary Committee to go to court to enforce the contempt

citations if the current attorney general, Michael Mukasey,

as expected, refuses to do so.

The stakes are high. There are people in jail today,

including a former governor of Alabama, who have raised

credible charges that they were put there for political

reasons. Congress's constitutionally guaranteed powers are

also at risk. If Congress fails to enforce its own subpoenas,

it would effectively be ceding its subpoena power. It would

also be giving its tacit consent to the dangerous idea of an

imperial president--above the law and beyond the reach of

checks and balances.

The founders did not want that when they wrote the

Constitution, and the voters who elected this Congress do not

want it today.

Ladies and gentlemen of the House, the resolution we are considering today is not steps that I take as chairman easily or lightly. It's been 8 months that we've tried to negotiate, nine letters, but this is what is necessary to protect the constitutional prerogatives as a coequal branch of government in this democracy of ours.

I believe the investigation we have been engaged in is an important one. And it's not about whether the U.S. Attorneys can serve at the pleasure of the President. They clearly can and do. But it concerns whether the American people can be assured that their laws are being fairly and impartially enforced by the United States Department of Justice. That's why we're here.

In order to pursue this investigation, we've done what committees in the Congress have traditionally done: We've sought our documents and testimony initially on a voluntary basis and through compulsory process only as a last resort. The investigation did not begin with the White House but has ended up there only after the review of thousands of pages of documents and obtaining the testimony and interviews of nearly 20 current and former Department of Justice employees.

We have been open at all times to any reasonable compromise and have been fully respectful and cognizant of the prerogatives of the executive branch. As a matter of fact, I have written the White House counsel on no less than nine separate occasions, and talked with him seeking a compromise on this matter.

What I am not open to, as the chairman of Judiciary, is accepting a take-it-or-leave-it offer which would not allow us access to information that we need, would not even provide for a transcript, and would prevent us from seeking any additional information in the future. That is the only proposal we've ever received from White House counsel, and so I would hope that all of the Members in this body, as an institutional matter, recognize the problems inherent in such an approach.

Now, some may argue that the stakes in this confrontation, and I think that's what's been suggested already, are so high that we cannot afford to risk that we might lose. Well, I'd say to them that if we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn't even have to bother to show up or tell us that they're not coming, where privilege can be asserted on the thinnest of bases and in the broadest possible manner, then we've already lost.

This is not a matter of vindicating the Judiciary Committee; and if you're really concerned about Congress' rights, which I think all of us are, you would contact the White House counsel's office.

We don't know because we can't get one sheet of paper from Mr. Bolten and nobody else will talk to us. That's precisely why we were forced to this position, sir.

If the gentleman is so kind to yield again, we don't have any evidence. We aren't accusing them of anything, sir. We're merely seeking the documents that could be relevant to the determination of whether the Department of Justice has been politicized.

I wanted to respond, or continue our discussion that was raised by the gentleman from Utah. As a matter of fact, in our resolution recommending that contempt of Congress be issued, we found plenty of evidence of wrongdoing at the Department of Justice, nearly 100 pages of it. This was voted out of the committee. For example:

The decision to fire or retain some U.S. attorneys may have been based in part on whether or not their offices were pursuing or not pursuing public corruption or vote fraud cases based on partisan political factors;

Department officials appear to have made false or misleading statements to Congress, many of which sought to minimize the role of White House personnel in the U.S. Attorney firings;

Actions by some department personnel may have violated civil service laws.

Executive Summary

To date, the committee's investigation--which has reviewed

materials provided by the Department of Justice in depth and

obtained testimony from 20 current and former Department of

Justice employees--has uncovered serious evidence of

wrongdoing by the Department and White House staff with

respect to the forced resignations of U.S. Attorneys during

2006 and related matters. This includes evidence that: (a)

the decision to fire or retain some U.S. Attorneys may have

been based in part on whether or not their offices were

pursuing or not pursuing public corruption or vote fraud

cases based on partisan political factors, or otherwise

bringing cases which could have an impact on pending

elections; (b) Department officials appear to have made false

or misleading statements to Congress, many of which sought to

minimize the role of White House personnel in the U.S.

Attorney firings, or otherwise obstruct the Committee's

investigation, and with some participation by White House

personnel; and ( c) actions by some Department personnel may

have violated civil service laws and some White House

employees may have violated the Presidential Records Act.

Based on this evidence, and because of the apparent

involvement of White House personnel in the U.S. Attorney

firings and their aftermath, the committee has sought to

obtain relevant documents from the White House and documents

and testimony from former White House Counsel Harriet Miers--

who appears to have been significantly involved in the

matter--on a voluntary basis and, only after taking all

reasonable efforts to obtain a compromise, on a compulsory

basis. The committee's subpoenas have been met with

consistent resistance, including wide-ranging assertions of

executive privilege and immunity from testimony. This has

gone so far that the administration indicated in July that it

would refuse to allow the District of Columbia U.S.

Attorney's office to pursue any congressional contempt

citation against the White House's wishes. In addition to the

many infirmities and deficiencies in the manner in which the

White House Counsel has sought to assert executive privilege,

in the present circumstance such privilege claims would be

strongly outweighed by the committee's need to obtain such

information.

Madam Speaker, I thank my colleagues of the Judiciary Committee, and I thank my colleagues of the Rules Committee.

Madam Speaker, I stand on this floor with a very heavy heart. It is a heavy heart compounded by the fact that Harriet Miers is my friend. We practiced law together in the State of Texas. We worked together. And so it is very difficult to stand here today and to acknowledge what is an enormous crisis in our Government, and that is the lack of recognition of the constitutional premise of the three equal branches of Government. I came yesterday to talk of the embeddedness of the Constitution not only in many books but also in the hearts of Americans. When I go home to Texas, people still ask the question: What are you doing about the U.S. attorney situation? What happened to the fairness and integrity of the appointment process? The American people want to know. We are now doing their bidding. They want us to be able to clear the air.

As a member of the Judiciary Committee, let me tell you, John Conyers has the patience of Job. Over and over again, and Chairwoman Sanchez, over and over again, working with Ranking Member Cannon, said that we wanted to do this in a way that you could come and give information, that information could be transcripted. We will then try to find out the truth.

We come here with a broken heart, a humble spirit, but with the Constitution deeply embedded in our heart, recognizing that there is nothing to protect if the President says that he is not involved.

Let the Constitution stand. Let us do what we are supposed to do. My friends, vote for this in a bipartisan way so that the Constitution remains sacred in our hearts and in this country.

Madam Speaker, I rise today in strong support of H. Res. 982, which provides that upon adoption of the rule, both H. Res. 979 recommending that the House of Representatives find former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten in contempt of Congress for their refusal to comply with subpoenas issued by the Committee on the Judiciary and H. Res. 980--Authorizing the Committee on the Judiciary to initiate or intervene in judicial proceedings to enforce certain subpoenas are adopted. Both of the resolutions were introduced by my distinguished colleague from Michigan, the Honorable John Conyers, Jr.

H. Res. 979

This resolution highlights the accountability issues that this body has continued to have with the Bush administration. This committee made attempt after attempt to secure critical information voluntarily from both former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten. At no point did they cooperate and comply with our requests. Even as this committee directed their appearance by subpoena, the White House sought to avert our inquiries by citing executive privilege.

Instead, the White House offered this committee a very limited inquiry, completely controlled by providing: (1) virtually no access to internal White House documents, (2) no questioning regarding internal White House discussions, and (3) no interview transcripts. The White House is not bluffing with this act of defiance. Rather, it seems the Bush administration wants to test, and attempt to expand, the limits of presidential power.

Madam Speaker, it was on July 12, 2007 that Ms. Harriet Miers was asked to testify before the Subcommittee on Commercial and Administrative Law investigating the removal of U.S. attorneys by the Bush administration, and did not attend. That same day, the subcommittee's Chair, the Honorable Linda Sanchez, undertook the preliminary steps necessary to declare Miers in contempt. The subcommittee voted 7-5 that there was no legal justification for Ms. Miers's failing to appear pursuant to the subpoena.

Notwithstanding this blatant affront to the House Judiciary Committee, Republican Members allowed party affiliation to trump institutional responsibility, just as they had when they controlled Congress. The Minority continues to make excuses for the Bush administration's defiance, and appears content to let the President slight the subcommittee by instructing both Ms. Miers and Mr. Bolten to not testify.

H. Res. 980 and CONGRESSIONAL OVERSIGHT

Congresssional oversight is an implied rather than an enumerated power. My colleagues across the aisle may make the argument that nothing explicitly grants this body the authority to conduct inquiries or investigations of the

Executive, to have access to records or materials held by the Executive, or to issue subpoenas for documents or testimony from the Executive.

However, congressional investigations sustain and vindicate our role in our constitutional scheme of separated powers. The rich history of congressional investigations from the failed St. Clair expedition in 1792 through Teapot Dome, Watergate, and Iran-Contra, has established, in law and practice, the nature and contours of congressional prerogatives necessary to maintain the integrity of the legislative role. Numerous Supreme Court precedents recognize a broad and encompassing power in this body to engage in oversight and investigation that would reach all sources of information necessary for carrying out its legislative function. Without a countervailing constitutional privilege or this body self-imposing a statutory restriction on our authority, this chamber, along with our colleagues in the Senate, have plenary power to compel information needed to discharge our legislative functions from the Executive, private individuals, and companies.

In McGrain v. Daugherty, 1927, the U.S. Supreme Court deemed the power of inquiry, with the accompanying process to enforce it, ``an essential and appropriate auxiliary to the legislative function.'' Senate Rule XXVI, 26, and House Rule XI, 11, presently empower all standing committees and subcommittees to require the attendance and testimony of witnesses and the production of documents. This chamber was given an implied power of oversight by the U.S. Constitution; that power has supported by our 3rd branch of government, the Supreme Court; we ourselves have expressed this authority in our Senate and House Rules, and yet two attorneys under the direction of the White House continue to tell us we do not have the proper authority.

H.R. 5230, Contempt of the House of Representatives Subpoena Authority

Act of 2008 [110th]

On February 6, I introduced legislation that would amend Title 28, of the United States Code and grant this chamber the statutory authority to bring a civil action to enforce and secure a declaratory judgment to prevent a threatened refusal or failure to comply with any subpoena or order for the production of documents, the answering of any deposition or interrogatory, or the securing of testimony issued by the House or any of its committees or subcommittees.

Once we pass H.R. 5230, we should have no further need to adopt resolutions for authorization to enforce certain subpoenas; we would already hold that statutory authority. As it stands now, we must collectively support both H. Res. 979 and H. Res. 980 under H. Res. 982, the adopted rule. Therefore, I urge my colleagues to join me in supporting H. Res. 982 an important piece of legislation that allows for not only accountability but enforcement.

Madam Speaker, by direction of the Committee on Rules, I call up House Resolution 982 and ask for its immediate consideration.

Madam Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Florida (Mr. Lincoln Diaz-Balart). All time yielded during consideration of the rule is for debate only.

General Leave

I ask unanimous consent that all Members have 5 legislative days within which to revise and extend their remarks and insert extraneous material into the Record.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, H. Res. 982 provides that upon its adoption, House Resolution 979 and House Resolution 980 are hereby adopted.

House Resolution 979 recommends that the House of Representatives find Harriet Miers and Joshua Bolten, the White House Chief of Staff, in contempt of Congress for refusal to comply with subpoenas duly issued by the Judiciary Committee.

House Resolution 980 authorizes the Judiciary Committee to initiate or to intervene in any judicial proceedings to enforce certain subpoenas.

Madam Speaker, I've had so many requests for time that I will cut my own time short. I simply want to give some reasons why it's important that we're here today.

In my 21 years in the House, I have known that there were Members who came to Congress simply hoping that throughout their career they will always land on the safe square; not wanting to take a vote that might challenge them in any way, not wanting to take a vote that might require explanation. Fortunately, this is the safe square today.

What we are doing here today is protecting the Constitution of the United States of America, which all of us are pleased, when we come here, to raise our hand and swear so to do. It is critically important that we protect the powers of the Congress of the United States for future generations. It would be dreadful if a future President, having looked back over the recent events, used it as a precedent.

We have a strong case on the merits, is the first point I want to make. The administration's assertions of executive privilege are weak, excessively broad, and unprecedented. We win the executive privilege argument both on legal grounds and our compelling need for requested information.

Aside from prevailing on the merits of the executive privilege dispute, enforcing our subpoenas is part and parcel of our current ability to perform effective oversight. If we accept the White House stonewalling in this instance, the House, in the future, will not be able to conduct its oversight. And every future President can view Congress, not as a coequal branch of this government, but as subordinate to the executive.

The enforcement of the subpoenas in this investigation seeks to strengthen, rather than weaken, the House's prerogatives by demonstrating that we are serious about citizens resisting the issuance of validly authorized congressional subpoenas. If we countenance a process where subpoenas can be readily ignored, where a witness, under a duly authorized subpoena, doesn't even bother to appear, where privilege can be asserted on the thinnest of reeds and the broadest possible manner, then we have already lost, and we may be in much more danger than even we believe.

There's ample precedent supporting the House's prerogative to initiate a civil action. If we pursue this course of action and it proves to be legally incorrect, then we here in Congress, where the laws are passed, can take necessary steps to correct that procedure. If we do not pursue this course of action at all, we, again, have already lost.

There are some who believe that the court will say that indeed we have no rights here. If that is the case, if that even should be a possibility, then I think we have to say that if the Justice Department has become that politicized and that weak, then we are in worse shape in this democracy than we know.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I am pleased to yield 4 minutes to the gentleman from Michigan, the distinguished chairman of the Judiciary Committee, Mr. Conyers.

Madam Speaker, I yield 3 minutes to the gentleman from North Carolina (Mr. Miller).

Madam Speaker, I am pleased to yield 1 minute to the distinguished Speaker of the House, the Honorable Nancy Pelosi of California.

Madam Speaker, I yield 1 minute to the distinguished majority leader of the House, Mr. Hoyer of Maryland.

Madam Speaker, I am pleased to yield 2 minutes to the gentleman from New York, a member of the Rules Committee, Mr. Arcuri.

Madam Speaker, I yield 3 minutes to the gentleman from Kentucky (Mr. Yarmuth).

Madam Speaker, I yield 1 minute to the gentleman from Michigan (Mr. Conyers), Chair of the Judiciary Committee.

Possibly five, Madam Speaker.

I am pleased to yield 2 minutes to the gentlewoman from Ohio (Ms. Sutton) who serves on both the Committee on Rules and Judiciary.

Madam Speaker, I yield 2 minutes to the gentleman from Tennessee (Mr. Cohen), a member of the Judiciary Committee.

Madam Speaker, I am pleased to yield 1\1/2\ minutes to the gentleman from Florida (Mr. Wexler) from the Judiciary Committee.

Madam Speaker, I yield 2 minutes to the gentlewoman from Florida (Ms. Wasserman Schultz) of the Judiciary Committee.

I believe I have just one. And so I will yield 1\1/2\ minutes to the gentlewoman from Texas (Ms. Jackson-Lee), a member of the Judiciary Committee.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

That's correct, if the gentleman is prepared to close.