House Prepares for Contempt Challenge
Joe Palazzolo
Legal Times
March 10, 2008
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.
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. Continued...
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