As Reuters correctly points out, its likely Republicans will continue to block any meaningful follow-through, but we are, to an extent, into uncharted territory now. Will Leahy and the Senate Democrats be content to let Bush wind down the clock on the matter in the Courts, or would there be movements towards inherent contempt, which would bypass the courts?
It seems unlikely that the Democratic leadership would have the stomach for a full-blown Constitutional battle. We’ll see. I expect there’ll be a statement from Leahy’s office anytime, and I’ll post it when there is as an update to this diary.
Opening Statement of Chairman Patrick Leahy
Executive Business Meeting
December 13, 2007
This week we have held three more important hearings before the Committee. I have noticed two more hearings next week to consider several of the President’s Executive Branch nominees. Regrettably, many of those announced for top Justice Department positions were not, in fact, nominated when announced, and even after those nominations were finally received, many still lack the necessary background checks and materials necessary to be considered. We are proceeding expeditiously with the nomination of Mark Filip to be the Deputy Attorney General and will hear from him next Wednesday. I noticed that hearing immediately upon receiving the nomination and background materials.
This week’s agenda includes a number of items I had hoped the Committee would have considered last week but that were carried over. We begin with the resolutions arising from the failures of Karl Rove and the President’s chief of staff to honor this Committee’s subpoenas. As the Ranking Member has said, when we issue subpoenas, we need to follow up. We have worked together during the last week to modify the language in the resolutions and I believe we can proceed efficiently this morning to consider and approve those items. The White House’s blanket claims of executive privilege and immunity are insufficient to excuse current and former White House employees from appearing, testifying and producing documents related to this Committee’s investigation. Having been directed to comply with the Committees’ subpoenas, they have not done so and now we must take the next steps to enforce the Committee’s subpoenas. This is not a step I have wanted to take – in fact, I have tried for many months to find ways to work with the White House and avoid a confrontation.
The President has not accepted responsibility for the firings or given any indication that he was involved in White House efforts to politicize federal law enforcement. Instead, the White House line is that “mistakes were made.” Apparently no one, least of all the President, is responsible, yet somehow executive privilege supposedly applies to cloak all White House activities and communication in regards to these firings affecting the independence and integrity of federal law enforcement from oversight.
The White House counsel asserts that executive privilege covers all documents and information in the possession of the White House. They have gone further and claimed absolute immunity even to have to appear and respond to this Committee’s subpoenas for Mr. Rove and Mr. Bolten. And they contend that their blanket claim of privilege cannot be tested but must be accepted by the Congress as the last word. Their views of the unitary and all powerful Executive know no bounds.
The position taken by this White House in refusing to turn over documents or allow White House officials and former officials to testify is a dramatic break from the practices of every administration since World War II in responding to congressional oversight. In that time, presidential advisers have testified before congressional committees 74 times, either voluntarily or compelled by subpoenas.
Executive privilege should not be invoked to prevent investigations into wrongdoing, and certainly should not prevail. These resolutions are an effort to provide a fuller account and accountability. We should act to protect Congress’ ability to conduct oversight and the right of the American people to learn the whole truth about the U.S. Attorney firings.
During the past week we have learned that the CIA destroyed videotapes of detainee interrogations. That revelation is leading to another investigation. As the Ranking Member on this Committee from 2001 through 2005, I was not informed of the existence of the videotapes or of their destruction. I do not believe the Republican Chairmen were either. I have repeatedly sought information about the Administration’s interrogations of detainees, including in connection with the consideration of the Mukasey nomination and my October 25, 2007, letter to the White House counsel. We continue doing so. This week Senator Specter and I jointly wrote the Attorney General seeking information relevant to the tapes, their destruction and the preliminary inquiry now underway within the Executive Branch. Surely, Congress must retain the authority to investigate and even subpoena relevant information without being foreclosed by blanket claims of executive privilege. I ask unanimous consent that an editorial from the Vermont’s Rutland Herald about the destruction of these tapes be included in the record.
We will next turn to Senator Specter’s bill to use the legal concept of substitution as an alternative to retroactive immunity in connection with the warrantless wiretapping of Americans contrary to law from 2001. I commend his constructive effort and look forward to that discussion.
Also on our agenda is our bipartisan bill to adjust judicial pay. I introduced this bipartisan legislation with Senators Hatch, Feinstein, Graham, Reid, and McConnell almost six months ago. It was the first bill introduced on this matter following the plea from the Chief Justice at the beginning of the year. This bill would authorize an increase in federal judicial salaries to recognize the important constitutional role judges play in administering justice, interpreting our laws, and providing the ultimate check and balance in our system of government. Since 1969, the salaries of federal judges have significantly declined when adjusted for inflation.
Eight years ago, Congress saw fit to double the President’s salary to $400,000 a year. We are not proposing to increase judges’ salaries by 100 percent, but by half that. Our democracy and the rights we enjoy depend on a strong and independent Judiciary. Surely we can do half as much for the judicial branch of government as we did for the Executive eight years ago. This was a key subject in the Chief Justice’s annual report for this year and I would like this Committee to act on it today.
I trust that the Republican holdover of the bill for the reauthorization of the National Center for Missing and Exploited Children will not portend further delay and that we can consider and report that measure without complications.
I urge all Members who have not yet arrived to come and participate with us in the work of the Committee.
# # # # #
RESOLUTION
Authorizing the President of the Senate to certify the facts of the failure of Joshua Bolten, as the Custodian of Records at the White House, to appear before the Committee on the Judiciary and produce documents as required by Committee subpoena.
WHEREAS, since the beginning of this Congress, the Senate Judiciary Committee has conducted an investigation into the removal of United States Attorneys;
WHEREAS, the Committee’s requests for information related to its investigation, including documents and testimony from the White House and White House personnel, were denied;
WHEREAS, the White House has not offered any accommodation or compromise to provide the information requested that is acceptable to the Committee;
WHEREAS, on April 12, 2007, pursuant to its authority under Rule 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary authorized issuance to the Custodian of Records at the White House, a subpoena which commands the Custodian of Records to provide the Committee with all documents in the possession, control, or custody of the White House related to the Committee’s investigation;
WHEREAS, on June 13, 2007, the Chairman issued a subpoena pursuant to the April 12, 2007, authorization to White House Chief of Staff Joshua Bolten as the White House Custodian of Records, for documents related to the Committee’s investigation, with a return date of June 28, 2007;
WHEREAS, on June 28, 2007, in response to subpoenas for documents issued by the Senate and House Judiciary Committees, White House Counsel Fred Fielding conveyed the President’s claim of executive privilege over all information in the custody and control of the White House related to the Committee’s investigation;
WHEREAS, based on this claim of executive privilege, Mr. Bolten refused to appear and produce documents to the Committee in compliance with the subpoena;
WHEREAS, on June 29, 2007, the Chairmen of the House and Senate Judiciary Committees provided the White House with an opportunity to substantiate its privilege claims by providing the Committees with the specific factual and legal bases for its privilege claims regarding each document withheld and a privilege log to demonstrate to the Committees which documents, and which parts of those documents, are covered by any privilege that is asserted to apply and why;
WHEREAS, the White House declined this opportunity in a July 9, 2007, letter to the Committee Chairmen from Mr. Fielding, while reiterating the privilege claim;
WHEREAS, on August 17, 2007, Mr. Fielding rejected the Chairman’s request for a meeting with the President to work out an accommodation for the information sought by the Committee;
WHEREAS, on November 29, 2007, the Chairman ruled that the White House’s claims of executive privilege and immunity are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation and directed Mr. Bolten, along with other current and former White House employees, to comply immediately with the Committee’s subpoenas by producing documents and testifying;
WHEREAS, Mr. Bolten has not complied with the Committee’s subpoenas or made any offer to cure his previous noncompliance;
WHEREAS, the Committee’s investigation is pursuant to the constitutional legislative, oversight and investigative powers of Congress and the responsibilities of this Committee to the Senate and the American people; including the power to: 1) investigate the administration of existing laws, and obtain executive branch information in order to consider new legislation, within the Committee’s jurisdiction, including legislation related to the appointment of U.S. Attorneys; 2) expose any corruption, inefficiency, and waste within the executive branch; 3) protect the Committee’s role in evaluating nominations pursuant to the Senate’s constitutional responsibility to provide advice and consent; and 4) examine whether inaccurate, incomplete, or misleading testimony or other information was provided to the Committee;
BE IT RESOLVED, that the President of the Senate certify the facts in connection with the failure of Joshua Bolten, as the Custodian of Records at the White House, though duly summoned, to appear and to produce documents lawfully subpoenaed to be produced before the Committee, under the seal of the United States Senate, to the United States Attorney for the District of Columbia, to the end that Joshua Bolten may be proceeded against in the manner and form provided by law.
# # # # #
RESOLUTION
Authorizing the President of the Senate to certify the facts of the failure of Karl Rove to appear and testify before the Committee on the Judiciary and to produce documents as required by Committee subpoena.
WHEREAS, since the beginning of this Congress, the Senate Judiciary Committee has conducted an investigation into the removal of United States Attorneys;
WHEREAS, the Committee’s requests for information related to its investigation, including documents and testimony from the White House and White House personnel, were denied;
WHEREAS, the White House has not offered any accommodation or compromise to provide the requested information that is acceptable to the Committee;
WHEREAS, on March 22, 2007, pursuant to its authority under Rule 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary authorized issuance to Karl Rove, Deputy Chief of Staff to the President, subpoenas in connection with the Committee’s investigation;
WHEREAS, on June 28, 2007, in response to subpoenas for documents issued by the Senate and House Judiciary Committees, White House Counsel Fred Fielding conveyed the President’s claim of executive privilege over all information in the custody and control of the White House related to the Committee’s investigation;
WHEREAS, on June 29, 2007, the Chairmen of the House and Senate Judiciary Committees provided the White House with an opportunity to substantiate its privilege claims by providing the Committees with the specific factual and legal bases for its privilege claims regarding each document withheld and a privilege log to demonstrate to the Committees which documents, and which parts of those documents, are covered by any privilege that is asserted to apply and why;
WHEREAS, the White House declined this opportunity in a July 9, 2007, letter to the Committee Chairmen from Mr. Fielding, while reiterating the blanket privilege claims;
WHEREAS, on July 26, 2007, the Chairman issued a subpoena authorized March 22 to Mr. Rove for documents and testimony related to the Committee’s investigation, with a return date of August 2;
WHEREAS, the Chairman noticed an August 2, 2007, Judiciary Committee hearing under its Rules at which Mr. Rove was subpoenaed to testify;
WHEREAS, Mr. Fielding, in an August 1, 2007 letter to the Chairman and Ranking Member, informed the Committee that the President would invoke a claim of executive privilege and a claim of immunity from congressional testimony for Mr. Rove, and directed Mr. Rove not to produce responsive documents or testify before the Committee about the firings, and that Mr. Rove would not appear in response to the Committee’s subpoena;
WHEREAS, based on these claims of executive privilege and absolute immunity,
Mr. Rove refused to appear or to produce documents or to testify at the Committee’s August 2, 2007, hearing in compliance with the subpoena;
WHEREAS, on August 17, 2007, Mr. Fielding rejected the Chairman’s request for a meeting with the President to work out an accommodation for the information sought by the Committee;
WHEREAS, on November 29, 2007, the Chairman ruled that the White House’s claims of executive privilege and immunity are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation and directed Mr. Rove, along with other current and former White House employees, to comply immediately with the Committee’s subpoenas by producing documents and testifying;
WHEREAS, Mr. Rove has not complied with the Committee’s subpoenas or made any offer to cure his previous noncompliance;
WHEREAS, the Committee’s investigation is pursuant to the constitutional legislative, oversight and investigative powers of Congress and the responsibilities of this Committee to the Senate and the American people; including the power to: 1) investigate the administration of existing laws, and obtain executive branch information in order to consider new legislation, within the Committee’s jurisdiction, including legislation related to the appointment of U.S. Attorneys; 2) expose any corruption, inefficiency, and waste within the executive branch; 3) protect the Committee’s role in evaluating nominations pursuant to the Senate’s constitutional responsibility to provide advice and consent; and 4) examine whether inaccurate, incomplete, or misleading testimony or other information was provided to the Committee;
BE IT RESOLVED, that the President of the Senate certify the facts in connection with the failure of Karl Rove, though duly summoned, to appear and testify before the Judiciary Committee and to produce documents lawfully subpoenaed to be produced before the Committee, under the seal of the United States Senate, to the United States Attorney for the District of Columbia, to the end that Karl Rove may be proceeded against in the manner and form provided by law.