Since the resignation of Attorney General Alberto Gonzales the Attorney-Gate charade has basically fallen off the map. That’s a good thing for the most part because there never was any “there” there, at least not with respect to the politically appointed attorneys who were fired in the due course of the administration’s affairs.
However, at least one latent matter left unresolved from Attorney-Gate is the refusal of White House Chief of Staff, Josh Bolten, and former White House Counsel, Harriet Miers, to testify before Congress on the matter (another being the IJ hirings). Both were subpoenaed, and both declined to participate citing executive privilege. In the category of a broken clock getting it right, I have to agree with the NYT editors on this one:
The House Judiciary Committee subpoenaed Ms. Miers and Mr. Bolten in connection with its investigation of the purge of nine top federal prosecutors and other apparent malfeasance in the Justice Department. Invoking executive privilege, Ms. Miers refused to appear and Mr. Bolten refused to turn over critical documents.
They had no right to refuse. Congress has the legal power to call witnesses to testify, and presidential advisers are not exempt. Conservative lawyers like Bruce Fein agree that the administration’s claims of executive privilege are baseless. If the White House believes specific matters are privileged, it needs to make those limited claims.
The rest of the editorial is mere liberal pablum and breathless conjecture about how the evil Bush Administration has ruined our government, blah blah blah …
The Bush administration’s days are numbered. But the damage it has done to the balance of powers could be long-lasting. If Congress wants to maintain its Constitutional role, it needs to stand up for itself. A good place to start is by making clear that its legitimate investigative authority cannot be defied, and any who choose to do so will pay a heavy price.
Although I do not share the NYT’s righteous fury, I simply don’t understand the White House’s refusal to allow Miers to testify or Bolten to turn over documents. I do think that its claims of executive privilege stand on solid ground, especially with respect to anything Miers might have to say, but that is not a reason to refuse to show up for a hearing. Perhaps someone will point out where I’m wrong on this, but as far as I know the subpoenaed parties need to testify even if their entire testimony is a citation of executive privilege. More importantly, the privilege needs to be asserted in response to specific requests, on specific subject matters, citing specific reasons for assertion of the privilege. There is no blanket executive privilege as I understand it. When Congress seeks to inquire, as it is charged with doing under the Constitution, the Executive must reply. Refusing to play is not a Constitutionally viable option.
Of course, the value of having Miers and Bolten testify is dubious at best. Most of what they would say, and nearly every document requested, will surely be covered by executive privilege, making this a futile exercise at best. Indeed, most Members of Congress probably knew this beforehand, which is why a vote before the full House is not being met with much alacrity:
House Democrats have postponed a vote until December on contempt resolutions against White House chief of staff Josh Bolten and former White House counsel Harriet Miers, delaying for now any constitutional showdown with the White House over the president’s power to resist congressional subpoenas….
Other top Democrats, including Caucus Chairman Rahm Emanuel (Ill.), have argued that the House should put off that fight while debates over Iraq funding and electronic eavesdropping dominate the floor. The contempt vote had been tentatively scheduled for Friday before Majority Leader Steny H. Hoyer (D-Md.) informed his colleagues that it was being delayed.
Although most of the Democrats are being coy about why the contempt citations are being delayed, at least one was willing to say what is surely on everyone’s mind:
Only one vulnerable Democratic member, Rep. John Barrow (Ga.), openly expressed serious reservations about moving forward with the bill.
“There has been a serious lack of oversight of this administration,” Barrow said. “But at the same time, I don’t think we should be picking fights we can’t win.”
A few Democrats contacted for this article, however, were unsure about engaging in a constitutional showdown with the White House over the matter and said they needed more time to study it.
The reason that Rep. Barrow thinks this is a losing proposition is because, even if the citations are upheld by a court (which they will be IMHO), all that earns Congress is a hearing full of Miers and Bolten refusing to answer questions or turn over specific documents. Again, that doesn’t make the White House’s position any more justifiable, but it does underscore the truly political nature of this affair, and what an utter waste of time and money it has been.
Well, unless we all really enjoy clown shows.
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