House Democrats subpoenaed former White House Counsel Harriet Miers and White House chief of staff Joshua Bolten to get their perspective on the U.S. Attorney purge scandal. They refused. House Democrats sought support from the Justice Department in enforcing congressional subpoenas. It refused.
Today, left with limited options, the House Judiciary Committee filed a civil suit to compel Miers’ and Bolten’s testimony. It sets up an extremely interesting legal showdown.
The lawsuit filed in federal court says Miers is not immune from the obligation to testify and that she and Bolten must identify all documents that are being withheld from Congress.
In a statement announcing the lawsuit, House Judiciary Committee Chairman John Conyers said, “We will not allow the administration to steamroll Congress.”
Conyers said he is confident the federal courts will agree that the Bush administration’s claims to be immune from congressional oversight are at odds with constitutional principles.
Judiciary Committee Chairman John Conyers (D-Mich) noted, “It is extremely rare that Congress must litigate in order to enforce subpoenas and no compromise can be reached. Unfortunately, this Administration simply will not negotiate towards a compromise resolution so we must proceed.”
White House Press Secretary Dana Perino responded, “The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching and we are confident that the courts will agree with us.”
It probably won’t surprise you to hear that Conyers’ argument is more compelling.
As Slate’s Dahlia Lithwick explained a while back, the White House’s legal argument is, in effect, that executive privilege extends to everyone who has ever spoken to the president about anything.
This little gem of an argument was cooked up by the White House last July when the Senate judiciary committee sought the testimony of former White House political director Sara Taylor, as well as that of former White House counsel Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan ideological reasons. Taylor was subpoenaed in June and, according to her lawyers, she wanted to testify but was barred by White House counsel Fred Fielding’s judgment that the president could compel her to assert executive privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic over-reading of the privilege would both preclude congressional oversight of any sort and muzzle anyone who’d ever communicated with the president, regardless of their wish to talk.
Besides, if the president had nothing to do with the U.S. Attorney scandal, as lawmakers are already inclined to believe, then what is there to be kept confidential between the president and his senior advisors?
As for the civil suit, David Kurtz argues that Dems may not be handling this as well as they should.
I just glanced through the pleading very quickly, but it struck me as odd that the House hasn’t brought in outside counsel to handle this case (at least not of record in the case). This could very well become the seminal case on the true scope of executive privilege, so the implications extend far beyond the U.S. Attorney scandal, which is what the subpoenas seek information about. The balance of power between Congress and the Presidency is at stake. These are structural constitutional issues. This case will almost certainly go up on appeal, probably all the way to the Supreme Court.
It seems to me you would want a team of the country’s best constitutional and appellate lawyers on the case from the outset, unencumbered by the usual business that the House Counsel’s Office faces.
Something to keep an eye on.