By Dan Eggen
Washington Post Staff Writer
Saturday, March 1, 2008
Attorney General Michael B. Mukasey refused yesterday to refer two new House contempt citations to a federal grand jury, saying the White House aides involved in the case cannot be prosecuted because they were following legal advice from the Justice Department.
In a letter to House Speaker Nancy Pelosi (D-Calif.), Mukasey said the refusal by White House Chief of Staff Joshua B. Bolten and former presidential counsel Harriet E. Miers to comply with congressional subpoenas "did not constitute a crime."
The department "will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote.
Mukasey's refusal further escalates a dispute between the administration and Congress over the firings of nine U.S. attorneys in 2006.
Bolten and Miers had refused to cooperate with a House probe because President Bush had declared that information about the firings was protected by executive privilege, which shields internal White House deliberations. The House approved contempt citations against Bolten and Miers on Feb. 14, marking the first time such complaints were ever brought against West Wing aides.
Democrats said they plan to file a lawsuit seeking the enforcement of the contempt citations.
"Today's decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden," Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, said in a statement.
The law provides for such cases to be sent to the U.S. attorney for the District of Columbia for possible referral to a grand jury. But Mukasey cited a 1984 Justice Department legal opinion, which said 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."