SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
The Bush White House’s scorched earth policy in battling Congressional inquiry into the U.S. attorney’s scandal unfolded a bit further today, with two major developments. First, Bush’s former political director, Sara M. Taylor, appeared before the Senate Judiciary Committee and suffered a general failure of recollection—very much along the lines of Alberto Gonzales. However, what she didn’t remember, she declined to answer on the basis of a letter sent by Fred Fielding, the president’s lawyer, to her lawyer, which purported to instruct her to refuse to testify.
But one exchange summed up everything just perfectly. Taylor insisted that she had sworn an oath to obey the president, and that she had to abide by her oath. This is nonsense. The law prescribes the form of oath sworn by federal government employees, and it requires that they swear to uphold the Constitution.
Taylor’s substitution of President Bush for the Constitution is more than just a lapse of memory. Rather, it reflects what the “loyal Bushies” really think–that the president stands above the Constitution, and that their duty is to him. More than two hundred years ago, at the nation’s founding, there was no ambiguity about this. Under King George, officers and servants of the colonial administration had been required to swear an oath of fealty to the British monarch. The Founding Fathers changed this, first requiring in the Constitution that the President swear an oath to uphold the Constitution and laws, and then prescribing by act in 1789 an oath of loyalty to the Constitution to be sworn by all public servants. This reflected that no one, and certainly not the office of executive, was above the Constitution. And yet today one could watch a video clip of Taylor explaining what the oath means to her, and Senator Leahy’s very appropriate rejoinder.
The second major development came when Harriet Miers, who previously agreed to appear and testify tomorrow, advised that she would not be appearing at all. She states that she has been instructed by the president’s lawyer, Fred Fielding, not even to appear before the Judiciary Committee.
So the White House is staking out the broadest claim of executive privilege yet seen. In their thinking, it is absolute, applying even to communications between the White House and other departments. The more traditional understanding of this privilege covers communications between the president and his closest advisors—but that’s it. This understanding is essential to the current inquiry, which aims to uncover the White House’s manipulation of prosecutions and investigations going on all around the country—which would not be privileged under the historical understanding of the term.
And this raises a further question: can the president’s lawyer instruct a former employee to disregard a subpoena to appear before a Congressional committee? The answer to that question is very clear. It is “no.” Refusal to honor a Congressional subpoena by appearing before the subpoenaing committee is a felony under 2 U.S.C. § 192. The act of “instructing” a witness to disregard the subpoena is also a felony under 18 U.S.C. § 1505. This is a different matter from refusing to answer questions as a result of privilege. The witness might very well appear and conclude that she will not answer one or more questions because, for instance, the answer might tend to incriminate her. And, though less clearly, because of some sort of executive privilege. But simply refusing to appear is a different matter, and it is very clearly a crime.
Of course all Americans who care about our system of governance will, at this point, be shocked and disturbed that the president’s lawyer would instruct former staffers to commit felonies. It has become a sort of modus vivendi for the Bush White House. And why not? What does this Constitution mean, and what are these laws?
The king is the law. That’s their motto.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Number of tombstones in Tombstone, Arizona:
Electrofishing on the Irrawaddy River deters dolphins from their habit of assisting fishermen.
Trump tweeted that “millions of people” had illegally cast ballots in last month’s presidential election, and the Washington Post identified four cases of voter fraud across the country.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."