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House aims lawsuit at the White House

The legal action seeks information on firings of nine U.S. attorneys.

March 11, 2008|Richard B. Schmitt | Times Staff Writer

WASHINGTON — The House on Monday launched what could be a landmark attack against the Bush administration, claiming in a federal lawsuit that the White House abused the protections of executive privilege to shield itself from legitimate oversight.

The suit, filed in federal court in Washington, seeks to force the White House to turn over documents and provide testimony shedding light on the role of executive-branch officials in the controversial dismissals of nine U.S. attorneys in 2006.

The novel action -- believed to be the first time the House has launched its own lawsuit to enforce subpoenas -- follows the refusal of the Justice Department to pursue criminal contempt charges against White House Chief of Staff Joshua B. Bolten and former White House Counsel Harriet E. Miers.

"The House is taking action today to uphold the rule of law and to protect our constitutional system of checks and balances," said House Speaker Nancy Pelosi (D-San Francisco).

Last year, during its investigation of the firings, the House Judiciary Committee subpoenaed Bolten and Miers. When neither cooperated, the full House voted, along party lines, to hold them in contempt and referred the case to the Justice Department last month. But Atty. Gen. Michael B. Mukasey declined to prosecute, upholding the administration view that the two confidants of President Bush were protected by executive privilege.

The politically charged lawsuit faces uncertain prospects. There is no federal statute that authorizes the House to directly enforce its subpoenas through the courts.

Proponents of the suit argue that Congress is left with no recourse when the Justice Department declines to pursue criminal charges, and that the court should step in for reasons of fairness.

In the past, courts have hesitated to get involved in sorting out claims of privilege between Congress and the executive branch. During the Reagan administration, a federal judge threw out a Justice Department suit seeking to block contempt charges against Environmental Protection Agency administrator Anne M. Gorsuch Buford for refusing to testify about irregularities in the federal Superfund program. Taking a cue from the judge, the two sides eventually settled their differences, and documents were released.

The latest case was assigned to U.S. District Judge John D. Bates, whom Bush appointed to the bench in 2001.

Legal observers say that Bates, a former section chief in the U.S. attorney's office in Washington, is a conservative and thoughtful judge who may sympathize with Congress' dilemma.

"He might be willing to get past the threshold issues . . . because he's sophisticated, and because he knows that in telling the U.S. attorney for D.C. not to proceed with a criminal contempt, Bush left no other choice," said Charles Tiefer, a professor at the University of Baltimore law school and a former House general counsel.

House lawyers said that they would seek an expedited hearing to have the case heard as soon as possible. Bates could rule in the late spring or summer.

A spokesman for House Minority Leader John A. Boehner (R-Ohio) called the suit a "partisan political stunt" and "a complete waste of time."

Rep. Chris Cannon of Utah, the senior Republican on the Judiciary Committee, seconded that view.

"Americans want their families protected from terrorists, their economy growing, and their borders secure," Cannon said. "The speaker seems to think those demands are secondary to protecting her base. This lawsuit will likely fail, but the real question is, at what cost?"

The firings of the federal prosecutors contributed to Atty. Gen. Alberto R. Gonzales' decision to resign in August. Democrats believe that some of those dismissed were targeted because they were pursuing investigations that hurt Republicans. Investigators suspect that White House officials, including political strategist Karl Rove, may have been deeply involved.

The White House has offered to make some officials available for questioning and turn over related documents. But Democrats have said the terms -- closed-door sessions without a written record -- are unacceptable.

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rick.schmitt@latimes.com

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