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On July 25, the House Judiciary Committee voted to hold Harriet E. Miers, former White House counsel, and Joshua B. Bolten, President Bush’s chief of staff, in contempt of Congress. Both, claiming executive privilege, had refused to respond to House subpoenas, Miers by failing to appear before the committee and Bolten by failing to produce requested documents. Representative John Conyers Jr., D-Mich., chairman of the committee, said this action was necessary “not only to gain an accurate picture of the facts surrounding the U.S. attorneys controversy, but to protect our constitutional prerogatives as a co-equal branch of government.” In the face of complete noncompliance with a subpoena, the committee had no other option than to act as it did. Miers could have at least appeared and refused to answer certain questions, as did Sara Taylor, the former White House director of political affairs, when she appeared before the Senate Judiciary Committee on July 11. To allow anyone to get away with willfully ignoring a subpoena would set a terrible precedent with regard to Congress’ oversight powers. If the full House of Representatives should vote the contempt citation, the next step would be unclear. Brian A. Benczkowski, principal deputy assistant attorney general, sent a letter to the House Judiciary Committee indicating that the U.S. attorney for the District of Columbia would not comply with a request to convene a grand jury over the contempt citation. He asserted that “the criminal contempt of Congress statute does not apply to the president or presidential subordinates who assert executive privilege.” This blanket assertion of executive privilege is based on no court precedent, but it seems unlikely that the House will be able to get around the DOJ’s refusal to act. According to congressional experts, that would leave the House with two options for enforcing the contempt citation: a legislative prosecution � a rare and unwieldy process � or a civil action in federal court seeking declaratory relief or an injunction. It’s important to remember that the federal courts have the authority to rule on an assertion of executive privilege, and that the privilege is not absolute. In U.S. v. Nixon, 418 U.S. 683 (1974), the U.S. Supreme Court stated, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Now that the Senate Judiciary Committee has issued subpoenas to White House political advisor Karl Rove and deputy political director J. Scott Jennings, the standoff over executive privilege will likely intensify. If the Bush administration is unwilling to test its broad assertion of privilege in court, it should work out a compromise acceptable to Congress with regard to the testimony of White House officials and the document request. If it won’t compromise, Congress will be justified in pursuing any option available to enforce a contempt citation.

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