Tuesday, July 24, 2007

Executive Privilege out of control

Congress wants Harriet Miers and others to testify about the firings last year of US attorneys that may have been politically motivated. Bush has claimed executive privilege and directed Ms. Miers not to testify, and she herself has declined to so much as show up for the hearings. And if Congress holds her in criminal contempt for doing so, they can only enforce that by going through the US attorneys, who work for Bush, who clearly will not pursue the matter. Check-mate.


A few things have become painfully clear to me here:
  • Ms. Miers should indeed be held in contempt. The claim of executive privilege may or may not apply here, but either way that's no excuse for ignoring a congressional subpoena. If you get a subpoena, you show up, even if all you do is repeat "I'm sorry, I cannot answer that due to (fifth amendment, executive privilege, I'm washing my hair, etc.)" all day. If your claim of executive privilege is valid, then you've fulfilled your duty.
  • As for the application of executive privilege: I am too much of an amateur to judge that, but if there is a suspicion of illegal activity (and political considerations in hiring/firing of career attorneys or political pressure that has the effect of interfering with day-to-day duties of attorneys would be illegal if true), my understanding is that privilege does not in fact apply.
  • If she is held in contempt and Bush sits on the contempt charge, then he should be impeached for obstruction of justice. This is a serious statement I'm making, but he's doing an end-run around the careful system of checks and balances. At this point, it is not about executive privilege, it's about responding to congressional subpoenas, and nobody should be above the law on this point, even if they are a friend of the president.
  • President Bush is clearly making a strong statement that he believes that executive privilege applies to anything to which he declares that it applies, and that such declarations are not subject to any sort of challenge or review by anyone but himself. This a remarkable statement - privilege may or may not be as broad as he claims, but the notion that it is essentially unquestionable is quite disturbing and I have a strong hunch that the judiciary might take a different view of this. Normally, I'd think that such an accusation against the president is overly harsh and cynical, but after the leaking of Valerie Plame's identity and the commutation of Lewis Libby's sentence, there is a pretty strong pattern of not accepting oversight within this White House.
I am going to be writing a bigger check to the ACLU than I wrote last year.

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