Democrats: Miers immunity claim may be illegitimate
By Elana Schor
Posted: 07/19/07 03:04 PM [ET]
Four of the Senate Judiciary Committee’s senior Democrats on Thursday challenged the validity of former White House Counsel Harriet Miers’s claim to “absolute immunity” from congressional subpoena in the U.S. attorneys scandal.
Miers repudiated a subpoena from the House’s judiciary panel last week, citing a legal opinion written by Steven Bradbury, the principal deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC). The opinion also suggested that Justice might opt against prosecuting White House officials whom Congress holds in contempt for ignoring subpoenas.
But in their letter to Attorney General Alberto Gonzales, the four Senate Democrats sought to poke holes in Bradbury’s claim that executive privilege shields Miers as well as President Bush. The assistant attorney general of OLC is the legally designated adviser to government agencies on issues such as immunity, the senators noted — but Bradbury was never confirmed to that post.
“It has been more than 210 days since the Senate returned to the President Mr. Bradbury’s second nomination to the position and therefore, under the Vacancies Act, he may no longer serve as acting head of OLC,” wrote Senate Judiciary Chairman Patrick Leahy (D-Vt.), Majority Whip Dick Durbin (D-Ill.) and Sens. Edward Kennedy (D-Mass.) and Russ Feingold (D-Wis.).
Further, the four senators noted, Gonzales is the only official legally permitted to offer Miers legal advice in the absence of a sitting assistant attorney general at the OLC. Yet Gonzales has publicly recused himself from handling any internal decisions on the U.S. attorneys scandal, which stems from the firings of at least nine federal prosecutors last year.
“There is a serious question about whether this OLC opinion was properly issued,” the senators wrote, asking Gonzales to explain his department’s stance by Monday.
Justice spokesman Dean Boyd said that Solicitor General Paul Clement, acting as the principal contact within the department for the U.S. attorneys inquiry after Gonzales' recusal, oversaw work on the OLC's legal opinion.
"As Principal Deputy Assistant Attorney General, Steve Bradbury had full authority to provide the White House Counsel with the legal advice requested," Boyd said. "Nothing in [statute] would affect that authority. Mr. Bradbury has served the Department with distinction over the past three years. We would urge the Senate Judiciary Committee to give him a prompt hearing and to move forward with his confirmation."
Bradbury’s nomination to become permanent head of the OLC first stalled in the Senate over his role in authorizing the National Security Agency’s warrantless eavesdropping program that began after the Sept. 11 attacks, and he remains a controversial figure at Justice. The department’s Office of Professional Responsibility began an inquiry last year into the OLC’s handling of the wiretapping program, but the probe was never completed because President Bush denied security clearances to the investigators.
