Harriet's Blowing Off Congressional Oversight

It looks like the Prez is trying to expand his power of executive privilege to go beyond legal proceedings to actually cover travel, as well. His former White House counsel, Harriet Miers, is due to appear before the House Judiciary Committee today, but her lawyer announced that she wasn't even going to bother to show. Traditionally, witnesses who evoke executive privilege to avoid giving specific testimony over whatever issues come up actually make an appearance to do so, but Bush told Harriet that her executive privilege is so total that she doesn't even need to make that much of an effort. I guess she's just got some sort of assumed executive privilege: No matter what the Judiciary Committee can think to ask her, we should all just assume that she would've evoked privilege if she'd been in attendance.

You've got to assume that the Judiciary Committee isn't too enamored of this strategy. Committee chair John Conyers and Linda T. Sánchez, chair of the Subcommittee on Commercial and Administrative Law, responded to Miers's lawyer.

A congressional subpoena, such as the one issued to Ms. Miers, carries with it two obligations: the obligation to appear, and the obligation to testify and/or produce documents. Even if a witness intends to assert privilege in response to a subpoena, that intention to assert privilege does not obviate the obligation to appear.

We are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena. To the contrary, the courts have made clear that no present or former government official – even the President – is above the law and may completely disregard a legal directive such as the Committee's subpoena.

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A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.

Over at the newly revamped Talking Points Memo, Josh Marshall passes on an e-mail he received that argues the Prez himself committed a felony by encouraging Harriet to blow off the hearing. Check it out--he's got citations and everything!

Congress needs to act on this. Bush and his administration are demonstrating that they do have contempt for Congress, and any waffling back and forth among members of Congress over whether to address it or not just proves Bush is right. There's no point in waiting for the Bushies to come around to do the right thing because we know from experience that's not going to happen. If they ever want any kind of response from this White House, Congress needs to prove that they mean business.