As I’ve been told, there’s an old law-school joke that everyone learns fairly quickly: when you have the facts, argue the facts … when you have the law, argue the law … and when you have neither, bang on the table.
Yesterday, after the House Judiciary Committee approved contempt citations against former White House Counsel Harriet Miers and current Chief of Staff Josh Bolten, the Bush gang banged on the table, starting with a surprisingly unhinged rant from Tony Snow.
“For our view, this is pathetic…. [W]e offered further that we would make available any persons of interest at the White House for full interviews by members of the committees — they’d be able to ask whatever questions they wanted to do. In each and every one of these cases, the efforts of the White House were rebuffed.
“And so now we have a situation where there is an attempt to do something that’s never been done in American history, which is to assail the concept of executive privilege, which hails back to the administration of George Washington.”
Snow doesn’t think very highly of his audience — he wouldn’t make these arguments unless he thought everyone listening was a moron.
On the Bush gang’s offer on testimony, Snow argues that the White House was “rebuffed.” Look, there have been three points of contention here — private vs public testimony, having aides swear under oath to tell the truth, and having a transcript of what was said. Congressional Democrats are willing to compromise on two out of the three points, the White House is willing to compromise on none of the three points.
For that matter, Snow’s argument becomes comical when one realizes that in one breath, he’s arguing for the sanctity of the executive privilege, but in the next breath, he’s implicitly arguing that Harriet Miers will answer lawmakers’ questions just so long as no one writes down what she says. (I’m curious: do even 28-percenters find this persuasive?)
As for Snow’s belief that “assailing” executive privilege has “never been done in American history,” I’m not an expert, but as I recall, Nixon made the same claim — and things didn’t work out too well for him.
On a related note, the New York Times editorial board added some helpful insights to the subject today, concluding that the White House “has been acting lawlessly.”
The committee really had no choice but to hold Ms. Miers in contempt. When she was subpoenaed to testify about the administration’s possibly illegal purge of nine United States attorneys, she simply refused to show up, citing executive privilege. Invoking privilege in response to particular questions might have been warranted — the courts could have decided that later. But simply flouting a Congressional subpoena is not an option.
Mr. Bolten has refused to provide Congress with documents it requested in the attorney purge investigation, also citing privilege, and he has been equally unforthcoming about why he thinks it applies. Together, Ms. Miers’s and Mr. Bolten’s response to Congress has simply been: “Go away” — a position that finds no support in the Constitution.
If these privilege claims make it to court, it is likely that Ms. Miers and Mr. Bolten will lose. The Supreme Court has held that a president’s interest in keeping communications private must be balanced against an investigator’s need for them. In this case, the president’s privacy interest is minimal, since the White House has said he was not involved in purging the United States attorneys.
I find that last point particularly interesting, since the president is claiming executive privilege to cover conversations with aides that the White House said never happened. Accordingly, Miers is being asked by her former employers not to tell lawmakers about conversations she didn’t have with the president.
The NYT concludes, “It is not too late for President Bush to spare the country the trauma, and himself the disgrace, of this particular constitutional showdown. There is a simple way out. He should direct Ms. Miers and Mr. Bolten to provide Congress with the information to which it is entitled.”
Somehow, I doubt that’s going to happen.