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The House is planning to file a lawsuit early this week challenging the Bush administration’s assertion of executive privilege to shield current and former White House officials from congressional subpoenas. (For an update on the House’s lawsuit filed on Monday, check out The Blog of Legal Times.) The lawsuit represents an untested strategy in the historical back-and-forth between Congress and the executive branch over the government’s fundamental separation of powers. The House’s legal arm, the small but increasingly high-profile General Counsel’s Office, has never filed a direct civil suit against an administration to obtain evidence or enforce subpoenas, former general counsel say. In fact, the office hasn’t filed a suit in nearly a decade. But under the command of a new leader, veteran litigator Irv Nathan, the office will try to make the case that testimony and certain internal documents from White House chief of staff Joshua Bolten and former White House counsel Harriet Miers are critical to the House’s investigation into the firing of nine U.S. attorneys, outweighing the Bush administration’s interest in keeping its business private. The White House plans a vigorous defense. A former administration official familiar with White House legal strategy in the case says Bush lawyers will challenge Congress’ standing to sue and will portray this as a political dogfight that does not require judical review to solve. Republicans have also called Nathan a partisan, pointing to work he did for the House Judiciary Committee when he was still a senior partner at Arnold & Porter. Last spring, the committee hired him to assist with its investigation into the U.S. attorney firings. “The general counsel has been involved in civil actions in the past, but they weren’t a head-on clash like this one,” says Charles Tiefer, a former House counsel who is a professor at the University of Baltimore School of Law. BIG GUNS Last October, House Speaker Nancy Pelosi (D-Calif.) appointed Nathan to replace Geraldine Gennet, who had run the office for 12 years. Nathan, a former chairman of Arnold & Porter’s white-collar practice, had been at the firm on and off since 1968, splitting his time between complex civil litigation (most recently, he represented CBS against Howard Stern when the shock jock jumped to Sirius Satellite Radio) and white-collar defense (he also represented WorldCom’s former CFO Scott Sullivan, who in 2005 was sentenced to five years in prison in the largest accounting fraud in U.S. history). Twice, Nathan left private practice for Justice Department posts. He was deputy assistant attorney general in the Criminal Division from 1979 to 1981 and principal associate deputy attorney general from 1993 to 1994. The House Judiciary Committee hired him last year, at rates of up to $25,000 a month for nine months, to advise members on the U.S. attorney investigation. The relationship ended before he was appointed, but the GOP complained that his work for the majority, which provided the foundation for the lawsuit against Miers and Bolten, made him unfit for a bipartisan post. Nathan, his deputy counsel, Kerry Kircher, who joined the office in 1995, and Assistant General Counsel Rick Kaplan, who came over recently from Sidley Austin, are handling the litigation. “They don’t need hired guns anymore,” says Brand Law Group’s Stanley Brand, the House general counsel from 1976 to 1983. “Irv Nathan is very capable.” Nathan’s office had help on the complaint from Perry Applebaum, general counsel to Rep. John Conyers Jr. (D-Mich.); Ted Kalo, Applebaum’s deputy; House Judiciary Committee chief investigative counsel Eliot Mincberg, former vice president, general counsel, and legal director at the People for the American Way; as well as other Judiciary Committee lawyers. While the Office of the General Counsel is under the speaker’s jurisdiction, picking a chief counsel requires the consultation of the Bipartisan Legal Advisory Group, which includes majority and minority leadership. The general counsel office launched its last major civil action in 1998. The House sued the Clinton administration to block the Census Bureau’s sampling plan, which Republicans feared would unfairly boost minority population numbers in traditionally Democratic enclaves. The case went all the way to the Supreme Court, and the office hired Latham & Watkins’ Maureen Mahoney to handle the argument, which she won. More recently, the office was in the spotlight for its legal work in Rep. William Jefferson’s case against the Bush administration. After the FBI’s 2006 raid on the Louisiana Democrat’s office in the Rayburn House Office Building, Gennet weighed in with a 90-page memorandum saying the act gravely threatened Congress’ immunity from executive meddling in its official business. Jefferson was indicted last year on bribery charges, but he scored a partial victory in the U.S. Court of Appeals for the D.C. Circuit, which ruled in August that the FBI violated the Constitution when agents viewed legislative materials in his office. The general counsel’s current fight with the administration was borne out of a resolution passed by the House last month to issue criminal contempt citations against Miers and Bolten. Republicans walked out, and the measure passed 223-32. In a Feb. 9 letter to Pelosi, Attorney General Michael Mukasey rejected her request to authorize the District’s U.S. attorney, Jeffrey Taylor, to refer the citations to a grand jury. Anticipating this, the House resolution included language authorizing the general counsel to file a civil suit. THE OLSON OPINION House Judiciary Committee aides say the complaint will name Miers and Bolten and ask the court to order them to deliver documents and to testify. George Manning, a Dallas-based partner at Jones Day, is representing Miers. He declined to comment. The White House did not respond to requests for comment, and it’s unclear whether Bolten has hired a private attorney. Experts on separation of powers say the House has an argument for civil remedy, after the administration balked at the contempt citations. Justice Department opinions have recognized the efficacy of a civil suit in contempt matters where there is a question of the government’s separation of powers. But House lawyers face a steep challenge in convincing a federal judge that the lawsuit asserts a controversy that is beyond political resolution, and the administration could try to bury the case on justiciable grounds, rather than argue the merits. “The principal hurdle is going to be justiciability,” says Todd Peterson, a professor at the George Washington University Law School who teaches courses on separation of powers. “It helps that [the House] can say it exhausted everything it could possibly do with respect to actions against the administration, but it has to show that this can’t be fought in the political arena.” The former White House official also says administration lawyers will challenge the House’s standing given that there’s no statute explicitly giving Congress the right to sue. The stakes are high. If the House loses, congressional subpoena power could be weakened. And a legislative fix, in a time of deep partisan divide, may not come easily. Mukasey has pointed to a 1984 opinion from the Justice Department’s Office of Legal Counsel to justify shielding Miers and Bolten. The opinion, which was drafted under the watch of then-OLC chief Theodore Olson, states that the president, “through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.” But the OLC opinion also suggested an alternative to prosecution: “We must assume, for the purpose of this opinion, that a civil suit is an avenue that is open to Congress, but closed to the Executive, absent a legislature willing to have the matter resolved in a civil proceeding.” Committee aides say that Nathan and his team will try to use the opinion to their advantage. Peterson, who was a staff attorney in the OLC when the opinion was drafted, says that the civil option was mentioned in passing and that Justice is not bound to that reasoning. But then he adds, “Would I include that in the complaint if I were writing it? You bet.”
Joe Palazzolo can be contacted at [email protected].

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