By a vote of 7-3, the House Subcommittee on Commercial and Administrative Law today rejected White House chief of staff Joshua Bolten's claims of executive privilege in the investigation into the firing of several U.S. attorneys. The subcommittee ruled that Bolten's refusal to produce subpoenaed documents was "not legally valid" for four reasons:
- "The claims of executive privilege are not properly asserted." (In the ruling, the committee cites court precedent and says that "a personal assertion of executive privilege by the President is legally required" and notes, "We have not received a statement from the President himself asserting the privilege." White House counsel Fred Fielding has previously rejected this argument, writing in a letter to Congress on July 9, "You may be assured that the President's assertion here comports with prior practices in similar contexts, and that it has been appropriately documented. I do hope that your Committees will appreciate that I write on behalf of the President.")
- "The White House is refusing not only to produce documents ... but also to even explain why the documents are being withheld."
- The documents the committee is seeking "do not concern communications to or from the President ... Indeed, the White House has unequivocally asserted that the President never received any advice on, and was not himself involved in, the U.S. attorney firings." (Committee's emphasis)
- "... Any such privilege is outweighed by the compelling need for the House and the public to have access to this information."
What happens next is unclear. House Judiciary Committee chairman John Conyers, D-Mich., issued a rather vague threat in his opening statement today, saying, "It is regrettable that this process has reached this point and it will undoubtedly cause us to consider further actions."
Those further actions were given name in a follow-up letter sent to Fielding, in which Conyers wrote: "This letter is to formally notify you that I must insist on compliance with the subpoena, and that Mr. Bolten's failure to properly mitigate his noncompliance could result in contempt proceedings ... Please let me know in writing by 10 a.m. Monday July 23, 2007, whether Mr. Bolten will comply. If I do not hear from you in the affirmative by then, the Committee will have no choice but to consider appropriate recourse."
This is hardly the first time Conyers has threatened someone with that "the Committee will have no choice but to consider appropriate recourse" line, so the White House may not be shaking in its boots quite yet.