An Accountability Moment That Must Not End

In the Nation, John Nichols writes:

There have been far too few accountability moments since Democrats retook control of the U.S. House and Senate in January, 2007.

But one came Thursday, when the House voted 223-32 to hold former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten in contempt of Congress for refusing to comply with subpoenas to testify before Congress in relation to the firing of nine United States Attorneys in 2006.

A pair of resolutions -- one that directs the U.S. Attorney in Washington, D.C. to bring criminal contempt charges against Bolten and Miers to a grand jury and another that authorizes the House general counsel to bring a civil suit against the White House to settle the question of whether the testimony of Bolten and Miers should be covered by executive privilege -- received the backing of 220 Democrats and three anti-war Republicans (Ron Paul, the renegade presidential candidate from Texas; Wayne Gilchrest, who lost his seat in a Maryland primary Tuesday; and Walter Jones of North Carolina).

The move was opposed by 31 Republicans and one Democrat (Texan Henry Cuellar, who backed Bush for reelection in 2004 and this year backs Hillary Clinton.) At the behest of House Minority Leader John Boehner, R-Ohio, 163 Republicans were recorded as "not voting." Ten Democrats did the same.

Thursday's House decision was historic, not just for its specific response to the lawlessness of two prominent members of the Bush-Cheney administration but for its broader message. With this action, Congress is beginning to reassert itself as a separate and equal branch of the federal government.

If the imperial presidency is to be ended, however, it will take more than an accountability moment.

The House Judiciary Committee and the House as a whole – which delayed the contempt vote for far too many months because of Speaker Nancy Pelosi's misguided caution about confronting the administration – must now aggressively pursue Miers and Bolten.

As American Freedom Campaign campaigns director Steve Fox correctly notes, "In order for our system of checks and balances to be effective, Congress must have oversight over the executive branch. When Bolten and Miers – with the encouragement of the President – refused to comply with the congressional subpoenas last summer, they were tacitly saying that this oversight power no longer existed. If they are not held in contempt -– and prosecuted in the courts -– our Constitution will have been defiled."

But nothing that is wrong with the Bush-Cheney administration or the federal government began with Miers and Bolten. And no fix will be complete if it stops with them.

The Judiciary Committee must hold to account the president and vice president who encouraged Miers and Bolten to disregard the rule of law.

Miers and Bolten refused to testify not as individuals but as members of an administration that has assaulted the constitutionally-defined system of checks and balances at every turn. They acted always, and in every way, at the behest of President Bush and Vice President Cheney.

It is important to hold the former counsel and the current chief of staff to account. Certainly, as People For the American Way Director of Public Policy Tanya Clay House says, "Congress has a responsibility to enforce its congressional powers, and moving forward with contempt citations is the appropriate response to this administration's stonewalling and arrogance."

But this "appropriate response" must not be seen as an end in itself.

For there to be accountability, more than a moment is required. And more than Miers and Bolten must be held to account for the high crimes and misdemeanors of an administration that has treated the Constitution and the Congress as afterthoughts.

"Members of the Bush administration have spent the last seven years pretending that the law doesn't apply to them," says House, who musters proper passion to add, "Congress has a responsibility to enforce its congressional powers, and moving forward with contempt citations is the appropriate response to this administration's stonewalling and arrogance."

Selective Justice in Alabama?

TIME reports:

On May 8, 2002, Clayton Lamar (Lanny) Young Jr., a lobbyist and landfill developer described by acquaintances as a hard-drinking "good ole boy," was in an expansive mood. In the downtown offices of the U.S. Attorney in Montgomery, Ala., Young settled into his chair, personal lawyer at his side, and proceeded to tell a group of seasoned prosecutors and investigators that he had paid tens of thousands of dollars in apparently illegal campaign contributions to some of the biggest names in Alabama Republican politics. According to Young, among the recipients of his largesse were the state's former attorney general Jeff Sessions, now a U.S. Senator, and William Pryor Jr., Sessions' successor as attorney general and now a federal judge. Young, whose detailed statements are described in documents obtained by TIME, became a key witness in a major case in Alabama that brought down a high-profile politician and landed him in federal prison with an 88-month sentence. As it happened, however, that official was the top Democrat named by Young in a series of interviews, and none of the Republicans whose campaigns he fingered were investigated in the case, let alone prosecuted.

The case of Don Siegelman, the Democratic former Governor of Alabama who was convicted last year on corruption charges, has become a flash point in the debate over the politicization of the Bush Administration's Justice Department. Forty-four former state attorneys general — Republicans and Democrats — have cited "irregularities" in the investigation and prosecution, saying they "call into question the basic fairness that is the linchpin of our system of justice." The Department of Justice and the U.S. Attorney's office strongly deny that politics played any part in Siegelman's prosecution. They say the former Governor, who recently began serving the first months of his more than seven-year sentence, got exactly what he deserved. But Justice officials have refused to turn over documentation on the case requested by the House Judiciary Committee, which scheduled a hearing on Siegelman's prosecution for Oct. 11.

Now TIME has obtained sensitive portions of the requested materials, including FBI and state investigative records that lay out some of Young's testimony. The information provided by the landfill developer was central to roughly half the 32 counts that Siegelman faced for allegedly accepting campaign contributions, money and gifts in exchange for official favors. (Siegelman was acquitted on 25 of those counts and convicted on seven. Young pleaded guilty to bribery-related charges and, in recognition of his cooperation with the government, received a short two-year sentence and fine.) But what Young had to say about Sessions, Pryor and other high-profile Alabama Republicans was even more remarkable for the simple fact that much of it had never before come to light.

The Young transcripts will probably add fuel to charges that the Bush Administration pursued selective justice in Alabama. Leura Canary, the U.S. Attorney whose office drove Siegelman's prosecution, is married to Bill Canary, Alabama's most prominent political operative and a longtime friend of Karl Rove's. In May an Alabama lawyer and Republican activist named Dana Jill Simpson gave a notarized statement that she heard Canary say Rove "had spoken with the Department of Justice" about "pursuing" Siegelman, with help from two of Alabama's U.S. Attorneys. Bill Canary called her charge "outrageous," and other alleged participants in the phone conversation issued similar denials. (The White House declined to comment, citing Siegelman's pending appeal.) But last month Simpson testified behind closed doors before the House Judiciary Committee. Sources tell TIME that, under penalty of perjury, she repeated her allegations about Canary and Rove.

Alabama is as red a state as the clay in its earth. After the years of rule by Southern Democrats, Republicans have now taken up residence in the Governor's mansion, as well as most statewide offices and congressional seats. In the 1990s Rove helped orchestrate a G.O.P. near sweep of the Alabama Supreme Court.

In this new Republican landscape, Siegelman emerged as one of the few Democratic stars, winning the Governor's race in 1998. He lost the seat in a close and contested race in 2002, but polls in 2003 showed that he had a good chance of recapturing the governorship. Then came the first indictment from the U.S. Attorney in Birmingham, charging Siegelman with using his position to rig a state bidding process. A judge dismissed the case in 2004 for lack of evidence. Just as Siegelman was preparing to run for Governor again, a second round of charges was brought in 2005 by the U.S. Attorney's office in Montgomery. His trial in 2006 overlapped with Alabama's Democratic primary, in which Siegelman had initially been a heavy favorite.

The investigation into Siegelman began as an inquiry into a contract held by Young to build a state warehouse in Alabama. Young was a well-liked figure in Montgomery who, by his own account, was in the habit of handing out cash, checks, rides on his private airplane and other goodies to members of both political parties. In return, he apparently hoped to receive favorable treatment for his garbage dumps and other lucrative state-related business.

Young testified that he had furnished Siegelman with an all-terrain vehicle and a motorcycle, lavishing money on the Governor and his aides. But he was an equal-opportunity influence monger. Early in the investigation, in November 2001, Young announced that five years earlier, he "personally provided Sessions with cash campaign contributions," according to an FBI memo of the interview. Prosecutors didn't follow up that surprising statement with questions, but Young volunteered more. The memo adds that "on one occasion he [Young] provided Session [sic] with $5,000 to $7,000 using two intermediaries," one of whom held a senior position with Sessions' campaign. On another occasion, the FBI records show, Young talked about providing "$10,000 to $15,000 to Session [sic]. Young had his secretaries and friends write checks to the Sessions campaign and Young reimbursed the secretaries and friends for their contributions."

If true, Young's statements describe political money laundering that would be a clear violation of federal law. In 1996, when Young said he had made the contributions, it was illegal to give a candidate more than $1,000 for a primary or general campaign. None of the individuals Young named as his intermediaries in making the donations are listed in Federal Election Commission records as contributors to Sessions' 1996 U.S. Senate race. "We have on record a $1,000 contribution from Mr. Young during the 1996 election cycle and no record of any other contribution from him," says a spokesman for Sessions.

Young also openly offered details about what he said were donations totaling between $12,000 and $15,000 to Pryor's campaign for state attorney general. Once again, Young had used the friends-and-colleagues maneuver. According to the FBI record, "Young advised that during Pryor's 1998 campaign, he contributed money through other individuals." Young named four people who "all wrote checks to Pryor's campaign and were reimbursed by Young for their contributions." At one point in the conversation, Young seemed particularly eager to tell all. "This was not just for the Governor's [Siegelman's] campaign," he told investigators. "It was also for the attorney general's campaign ... I gave you the example of five checks totaling $25,000. If I was there, I would write them out or just sign them, and they would fill in who it was to or whatever." According to Young, a top official on Pryor's campaign "would call and say, 'I need money for this, this or this,'" and Young would take care of the request. ("I do not have a recollection of the amounts that you describe as having been contributed by Lanny Young or his associates to my campaign," Pryor wrote in an e-mail to TIME.)

But it wasn't always as impersonal as handing over a stack of bills or checks. Among the illegal actions alleged in Siegelman's indictment was his acceptance from Young of thousands of dollars' worth of free T shirts and hundreds of specially embossed coffee mugs to give away as Christmas presents. The freebies were popular, said Young. "I had got them coffee cups and stuff before and shirts, and I had the same thing for Bill [Pryor]." Young estimated the value of the mugs at $13,000 to $15,000, and he even offered to share the extras with his inquisitors: "I've still got a case of his [Pryor's coffee cups] ... if y'all want to come get them." ("I don't think we want to touch them right now," an investigator replied.)

This evidence was heard by lawyers from U.S. Attorney Canary's office, representatives of Alabama's Republican attorney general and an attorney from the Justice Department's public-integrity unit in Washington. But in an unusual exercise of prosecutorial discretion, nearly all the payments and donations went uninvestigated. And when Siegelman's defense team, which had obtained Young's statements amid tens of thousands of documents provided in discovery, raised his accusations briefly in court, a judge quickly ruled them irrelevant.

Legal experts say prosecutors enjoy wide latitude in deciding whom to charge in criminal cases. But according to Laurie Levenson, a former assistant U.S. Attorney and a prominent expert in legal ethics at Loyola Law School in Los Angeles, there are limits. "Certainly prosecutors would face a professional obligation to check out or verify the allegations in this case," she says. "Not doing so would represent a potential abuse of prosecutorial discretion." The key, she adds, is whether prosecutors chose not to pursue evidence of criminal activity by Republicans because of political bias or a conflict of interest. Sometimes prosecutors have a more benign motive; they may simply verify that allegations are untrue or be unclear on how to categorize the offense or the relevant statute of limitations. Certainly in Young's statements about Sessions and Pryor, he did not allege a quid pro quo for his money laundering of their campaigns. And whatever the involvement of their campaigns, Sessions and Pryor both assert they were completely unaware of his confessed chicanery. But the U.S. Attorney's office chose to prosecute Siegelman in no small measure on the basis of Young's word and chose not to investigate Sessions and Pryor — or their campaigns — on the basis of that same word.

Several people involved in the Siegelman case who spoke to TIME say prosecutors were so focused on going after Siegelman that they showed almost no interest in tracking down what Young said about apparently illegal contributions to Sessions, Pryor, other well-known figures in the Alabama G.O.P. and even a few of the state's Democrats. "It just didn't seem like that was ever going to happen," said an individual present during key parts of the investigation. "Sessions and Pryor were on the home team."

That description is not just a metaphor: several of the lawyers involved in the Siegelman investigation were from Pryor's office and had worked for Sessions as well when he held the post. In such circumstances, say experts on legal ethics, it is nearly always incumbent on investigators to inform a third party and recuse themselves from further questioning to avoid a conflict of interest. In this instance, it appears the investigators chose not to recuse themselves but to simply ignore the allegations. (Steve Feaga, an assistant U.S. Attorney in Canary's office, says, "I'm confident that we investigated every viable federal crime and prosecuted them.")

The fact that most of Young's claimed contributions apparently went unrecorded raises the possibility that he never made them, that he was merely boasting. But it would also mean that he had lied to federal agents, which is a felony, and Young was never charged with that crime. If he had lied, that would also have diminished Young's credibility as a key government witness against Siegelman. One of Young's lawyers tells TIME, "There was never the slightest suggestion by prosecutors that the information my client provided about contributions to Sessions and Pryor was in any way untrue." The judge in the Siegelman case also seemed to find Young credible: he stated at sentencing that he had increased the sentencing guidelines for the Governor on the basis of a prosecution memo that alleged "systematic and pervasive corruption" and cited a "criminal relationship with Lanny Young."

The controversy surrounding the case in Alabama is not that Siegelman went to prison and his Republican colleagues didn't. Without an investigation or even questions being asked, it's impossible to know whether any of them committed illegal acts. The issue is that some of the same allegations that led to Siegelman's indictment never merited so much as a follow-up when raised in connection with Republicans.

U.S. Attorney Canary has vigorously rejected the suggestion of any political influence on the case. She has pointed out that the investigation of Siegelman originated not with her but with her Democratic predecessor as U.S. Attorney and in the office of Alabama's then attorney general, Bill Pryor. Moreover, she notes that she was in charge of the case for only eight months, long before indictments were handed down, and then publicly recused herself to avoid even the appearance of a conflict of interest.

Yet Canary was in charge when Young spoke about his payments to the Sessions and Pryor campaigns and to other Alabama Republicans. At the same time, her husband's consulting firm, Capitol Group LLC, was being paid close to $40,000 to advise Pryor. A source who held a senior post in Canary's office during the long-running investigation into Siegelman says it's almost inconceivable that Canary would not have been informed of Young's charges against prominent Republican officeholders and candidates. Canary denied that to TIME. The fact that those charges were never looked at will only heighten suspicions that the Siegelman prosecution was a case of selective justice and that in the Bush Administration, enforcing the law has been a partisan pursuit.

Congress Seeks Justice Department Documents On Torture

The New York Times reports:

The Democratic chairmen of the Senate and House Judiciary Committees asked the Justice Department today to turn over secret legal opinions issued in 2005 that authorized the use of harsh interrogation techniques against terrorism suspects after the Department publicly repudiated torture as “abhorrent” in a 2004 opinion.

The 2005 legal opinions, disclosed for the first time by The New York Times, remain in effect, according to officials familiar with the Bush administration’s policy on interrogation. One provided legal justification for the use of a battery of aggressive tactics and a second said the techniques did not amount to “cruel, inhuman, or degrading” practices under international agreements.

Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said it appeared that the Justice Department lawyers had “reversed themselves and reinstated a secret regime, in essence reinterpreting the law in secret.” He said his committee had been seeking information about the Justice Department’s legal interpretations of the law for two years without success and urged the administration to cooperate.

Representative John Conyers Jr. of Michigan, who heads the House Judiciary Committee, requested that the Justice Department’s opinions be turned over to the House panel as well and asked the department to make available for a hearing Steven G. Bradbury, of the department’s office of legal counsel, who signed the 2005 opinions.

Mr. Leahy also said his committee would hold confirmation hearings on the nomination of Michael B. Mukasey to be attorney general on Oct. 17.

Officials at the White House and the Justice Department said the 2005 legal memorandum did not change the administration’s statement in 2004 that publicly renounced torture as “abhorrent.”

“The policy of the United States is not to torture,” said Dana Perino, the White House press secretary. “The president has not authorized it, he will not authorize it.”

“But he had done everything within the corners of the law to make sure that we prevent another attack on this country,” she said at a news briefing today.

“I am not going to comment on any specific alleged techniques,” Ms. Perino said. “It is not appropriate for me to do so. And to do so would provide the enemy with more information for how to train against these techniques.”

Asked whether the disclosure of the 2005 memorandum could harm national security, Ms. Perino said. “You know, it’s secret for a reason. It’s not secret just because we want it to be a secret. It’s secret because it is classified, and classified for the reasons to protect the country from terrorists who are determined to attack us.”

The Justice Department’s spokesman, Brian Roehrkasse, said in a statement that he could not comment on classified legal advice, but he reiterated that any opinions by the department were consistent with the public 2004 memorandum on interrogations. He said the Bush administration’s “strong opposition to torture” had been consistent.

He expressed the department’s support for Mr. Bradbury, whose nomination to be permanent head of legal counsel’s office has been blocked by Senate Democrats. Mr. Roehrkasse said Mr. Bradbury “has worked diligently to ensure that the authority of the office is employed in a careful and prudent manner.”

In the areas of domestic surveillance and detainee issues, Mr. Roehrkasse said Mr. Bradbury’s “efforts have strengthened cooperation among the branches in these key national security areas.”

Broader Privilege Claimed In U.S. Attorney Firings

The Washington Post reports:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

The administration's statement is a dramatic attempt to seize the upper hand in an escalating constitutional battle with Congress, which has been trying for months, without success, to compel White House officials to testify and to turn over documents about their roles in the prosecutor firings last year. The Justice Department and White House in recent weeks have been discussing when and how to disclose the stance, and the official said he decided yesterday that it was time to highlight it.

Yesterday, a House Judiciary subcommittee voted to lay the groundwork for contempt proceedings against White House chief of staff Joshua B. Bolten, following a similar decision last week against former White House counsel Harriet E. Miers.

The administration has not directly informed Congress of its view. A spokeswoman for Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee's chairman, declined to comment . But other leading Democrats attacked the argument.

Senate Majority Leader Harry M. Reid (D-Nev.) called it "an outrageous abuse of executive privilege" and said: "The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."

Sen. Charles E. Schumer (N.Y.) said the administration is "hastening a constitutional crisis," and Rep. Henry A. Waxman (D-Calif.) said the position "makes a mockery of the ideal that no one is above the law."

Waxman added: "I suppose the next step would be just disbanding the Justice Department."

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney in the District.

Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.

In defending its argument, administration officials point to a 1984 opinion by the Justice Department's Office of Legal Counsel, headed at the time by Theodore B. Olson, a prominent conservative lawyer who was solicitor general from 2001 to 2004. The opinion centered on a contempt citation issued by the House for Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

It concluded: "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual."

In the Burford case, which involved spending on the Superfund program, the White House filed a federal lawsuit to block Congress's contempt action. The conflict subsided when Burford turned over documents to Congress.

The Bush administration has not previously signaled it would forbid a U.S. attorney from pursuing a contempt case in relation to the prosecutor firings. But officials at Justice and elsewhere say it has long held that Congress cannot force such action.

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."

But Stanley Brand, who was the Democratic House counsel during the Burford case, said the administration's legal view "turns the constitutional enforcement process on its head. They are saying they will always place a claim of presidential privilege without any judicial determination above a congressional demand for evidence -- without any basis in law." Brand said the position is essentially telling Congress: "Because we control the enforcement process, we are going to thumb our nose at you."

Rozell, the George Mason professor and authority on executive privilege, said the administration's stance "is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president's view. . . . It's allowing the executive to define the scope and limits of its own powers."

Bush Calls Vote on Gonzales, "Pure Political Theater"

Bloomberg.com reports:
President George W. Bush said Attorney General Alberto Gonzales continues to have his full support and called an attempt by Senate Democrats to hold a no-confidence vote on the embattled Justice Department chief ``pure political theater.''

``He has got my confidence, he has done nothing wrong,'' Bush said today in response to a question during a news conference at his Texas ranch. ``I stand by Al Gonzales.''

The Senate and House Judiciary committees are investigating whether the firings of eight federal prosecutors last year were the result of improper political influence. At least six Republicans have joined with Democrats in calling for Gonzales to step down because of the way the situation was handled.

Democratic Senators Charles Schumer of New York and Dianne Feinstein of California are proposing the Senate vote on a no- confidence resolution as soon as this week.

``It is this kind of political theater that has caused the American people to lose confidence in how Washington operates,'' Bush said today. He didn't directly address a question about whether he wants Gonzales to stay through the end of his term.

Schumer, responding to Bush's comments, said Gonzales should be replaced to restore the public's faith in the Justice Department.

``The president should understand that while he has confidence in Attorney General Gonzales, very few others do,'' Schumer said in a statement.

While a largely symbolic gesture, a vote of no confidence would add to the political pressure on Gonzales, 51, a longtime adviser to Bush who the president appointed as attorney general in 2005.

Senator Arlen Specter, the ranking Republican on the Judiciary Committee, said yesterday that Gonzales may resign rather than face a ``very substantial'' no-confidence vote. Specter is among the Republicans who have questioned whether Gonzales can continue to be effective in his job as the nation's chief law enforcement officer.