Within mere moments of this posting, investigations into the controversial firing late last year of eight U.S. attorneys could result in a Constitutional battle of wills between the Executive and Legislative Branches, a battle which will be waged in the courts - and perhaps even all the way to the Supreme Court.
The catalyst that sets the stage for this battle is Harriet Miers, the former White House Counsel. Congress has threatened to hold Ms. Miers in contempt of Congress for failing to honor a congressional subpoena to answer questions about White House involvement in the firings. Miers, at the direct order of President Bush, cited the doctrine of executive privilege as her reason for declining to appear before House Judiciary Committee last week. House Judiciary Committee Chairman John Conyers has given Ms. Miers until this afternoon to communicate her intention to appear before the committee. If she does not, contempt of Congress charges will likely follow.
So, what is the basis for Harriet Miers refusal to appear in the US attorney investigation? She was ordered by the president not to appear citing "executive privilege". What is executive privilege and what does it have to do with this particular case? And will it hold up in court?
"Executive privilege" is similar to the privilege that exists to protect conversations between a lawyer and his or her client. The doctrine of executive privilege, borne of the separation-of-powers doctrine of the US Constitution, protects communications between the president and his advisors. Essentially, executive privilege asserts that the executive should not be forced to disclose communications concerning policy-making and which interfere with the operational duties of the Executive Branch.
There is some debate as to whether executive privilege can be used to shield former Executive Branch employees who have since their service become private citizens. The assertions of executive privilege have traditionally been ubiquitous and have been invoked many times in areas such as criminal investigations and foriegn and military affairs. In the case of the US attorneys investigation the reasoning is that if executive advisors are forced to testify they would be hesitant in their candor when providing counsel and advice for fear their comments would some day become a matter of public record. The traditional way of getting around the executive privilege issue has been that Congress and the president simply, eventually after much tit-for-tat, work things out and move forward.
But it is beginning to look as though they will not work it out this time...not simply anyway. In fact, the whole matter threatens a Constitutional crisis that would be ultimately decided in the courts. The first step, providing that Ms. Miers stands the Judiciary Committee up again today, is for the committee to vote on whether to find her in contempt of Congress. If the vote passes, it will then go before the full House of Representatives to be put to a vote. If they vote to find Ms. Miers in contempt, the issue would be forwarded to the US attorney for the District of Columbia for consideration of prosecution. But that poses a potential problem.
US attorneys are part of the Justice Department and the Justice Department hasn't exactly been forthcoming about their own involvement in the firings, itself refusing to release relevant documents while making the determination that the president also is not required to submit his documents relating to the firings. So it is uncertain whether or not the treatment of Miers' case will be immune from judiciary bias. However, the US attorney is an independent entity and could decide to express that independence by pursuing the contempt charges regardless of Justice Department resistance.
So, should it make it into the courts, how will it play out? By deciding which side, the Executive Branch's operational independence or the Legislative Branch's obligation to oversight, is most important in the larger scheme of things. Opinions as to who would prevail are many but most observers believe that Congress stands on firm ground in this matter.
The whole mess stems out of the president's assertion that Congress has no right to investigate his legal right to replace US attorneys as he sees fit. Congress contends that the president, though he does indeed have the right to appoint US attorneys at will, does not, however, have the right to fire and replace US attorneys for improper reasons, including the politicization of the Justice Department, which is supposed to remain impartial with regard to political affiliation, race, financial standing, etc.
The investigations into the firings began when some of the fired prosecutors made statements and gave testimony in Congress that they were fired because they did not tow the Republican Party line, which essentially consisted, among other things, of pursuing more investigations and charges against Democrats.
UPDATE: As I conclude this post, the time for Harriet Miers to announce her intention to appear before the House Judiciary Committee has come and gone and she has demonstrated her contempt of Congress and her loyalty to the president by refusing to appear a second time.
http://thinkprogress.org/2007/07/17/mierss-second-subpoena-rejection/
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