The House doesn't plan to stop its pursuit of three top aides to former President Bush just because there's a new administration in office, House Speaker Nancy Pelosi told Rolling Stone recently. Pelosi still wants to see Karl Rove, Harriet Miers and Josh Bolten prosecuted for their refusal to honor subpoenas issued to them in the course of Congress' investigation into the U.S. attorney firings.
"[W]e will continue to pursue our contempt of Congress charges against these people for what we believe has been the politicizing of the Justice Department," Pelosi said. "What we're talking about is bigger than any specific activity. We're talking about contempt of Congress Article One, the legislative branch ... The White House, no matter who is in it, cannot violate the Constitution by not being accountable to the Congress."
The speaker did concede, however, that she doesn't yet know whether the prosecutions will actually go forward. "Under Bush, the Justice Department told the U.S. attorney not to prosecute the case. So the beat goes on; it just gets worse," Pelosi said. "We don't know what will happen, because they've delayed it a long time."
For the moment, I can't be sure what will happen, either, but I can offer a pretty educated guess: The Obama administration is very, very likely to take the same position as its predecessor and direct the U.S. attorney for the District of Columbia not to prosecute Rove, Miers or Bolten.
The Bush administration blocked those contempt of Congress prosecutions using the rationale that the three aides were only refusing to testify and produce documents because the president, who'd invoked executive privilege, had told them not to. Since the president is also the U.S. attorney's boss, the logic went, he couldn't very well tell three of his employees to do something and then, when they did it, have them prosecuted by another person who works for them.
This might sound like a radical idea, an attempt by the Bush administration to further aggregate power to itself and prevent any oversight. But the Bush White House was hardly alone in its argument -- in fact, many Democrats who were veterans of the Clinton administration agreed. The real split on the issue isn't between Democrat and Republican, but between the executive branch and the legislative branch.
I wrote an article about all this back in the summer of 2007, when the issue first came up. Among the people I interviewed for that piece was Dawn Johnsen. At the time, she was a professor at the Indiana University School of Law, but now she's headed for the Obama administration. In fact, the Senate Judiciary Committee is holding a hearing tomorrow on her nomination to be the assistant attorney general in charge of the DOJ's Office of Legal Counsel, which is essentially in charge of the administration's position on legal issues like this. And, at least in 2007, Johnsen agreed with Bush's argument on these prosecutions.
"I think that the position that the administration is taking here is very strong, actually," Johnsen said. "I'm someone who thinks that the Bush administration's assertion of executive privilege is overbroad and that they should be turning over more information, but I think that it's right that if the president does legitimately assert executive privilege the president may direct the U.S. attorney not to prosecute someone who acts consistently with that assertion."
Another person I interviewed for that article was Cass Sunstein, who's going to be the Obama administration's regulatory czar, but has been a top legal advisor to the president. He, too, thought the Bush administration was right. "I'm struggling here," Sunstein said in 2007, "because I don't have the reaction that the president's assertion of power to stop the U.S. attorney from prosecuting is independently outrageous ... This is the attorney general saying to the U.S. attorney, 'We don't want you bringing a prosecution which is violative of the president's constitutional prerogatives. You work for the guy, so don't do that.' That's, in the abstract, OK."
One other interesting part from the R.S. interview with Pelosi that's worth pointing out is that she appears to be much more interested in prosecuting Rove, Miers and Bolten than in investigating and potentially prosecuting someone like former Defense Secretary Donald Rumsfeld for torture.
That, too, probably comes down to the executive vs. legislative divide I mentioned earlier. Pelosi, along with the rest of Congress, stands to gain from a successful contempt prosecution, as it would set a new precedent giving the legislative branch more power to investigate the White House. Pelosi wouldn't see the same kind of benefit from prosecuting Rumsfeld, because the central issue in that case wouldn't be about the separation of powers.