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Executive Privilege on the Firing Line

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Former White House counsel Harriet Miers and chief of staff Joshua Bolten have been sued by the House of Representatives, which now seeks to enforce its subpoenas through a special legal action in the federal district court in Washington. The New York Times’s Neil Lewis describes the suit in these terms:

The confrontation between the White House and Congressional Democrats escalated on Monday as the House Judiciary Committee asked a federal judge to force Harriet E. Miers, former White House counsel, and Joshua B. Bolten, White House chief of staff, to provide information about the dismissals of federal prosecutors in 2007.

Citing legal guidance from the White House, Ms. Miers and Mr. Bolten have refused to comply with Congressional subpoenas seeking information and documents involving the firings. The suit before Judge John D. Bates of Federal District Court in Washington says neither Ms. Miers nor Mr. Bolten may avoid the subpoenas by citing executive privilege, the doctrine that allows advisers’ advice to the president to remain confidential.

The entire affair surrounding Miers and Bolten goes to the U.S. attorneys scandal, and to the White House’s refusal to cooperate with any Congressional oversight or investigation into the affair. Miers, who now practices with a Dallas law firm, was “instructed” (in the words of Attorney General Mukasey’s letter to Congress) not to comply with the Congressional subpoena. Bolten was subpoenaed as the White House chief of staff and thus as custodian of its records; he was asked to produce internal communications, including emails, that relate to the firing decision. Although only a handful of emails were produced, a number of them put President Bush’s then-senior political advisor, Karl Rove, smack in the middle of the decisions to fire the U.S. attorneys, and put partisan political issues at the top of his agenda. In one extremely revealing notation, Rove marks a memo for a discussion with Miers about Milwaukee U.S. attorney Steven Biskupic. (Go to page 30 of the linked House Report.) The memo complains that Biskupic was “not doing enough” to prosecute “voter fraud” cases in support of a G.O.P. election plan. In fact Biskupic’s name appeared on a list of U.S. attorneys to be fired, and subsequently disappeared after he brought a politically-motivated prosecution tailored to run parallel to an election contest.

A number of other matters raise even more interest. Topping the list right now is the dismissal of U.S. attorney David Iglesias in Albuquerque after he declined requests from two members of New Mexico’s Congressional delegation that he indict a Democratic elected official in the weeks just before the 2006 midterm election. The Iglesias matter also involves interventions and dealings by Rove and President Bush himself.

In its complaint, the House of Representatives states that Executive Privilege cannot be invoked to preclude Miers’s appearance altogether, but only with respect to specific questions which implicate Executive Privilege issues. A copy of the complaint is attached here. It asks the Court to rule on contests over the privilege. The Administration’s use of Executive Privilege is unprecedented and not based on any prior authority. Historically, privilege issues have been resolved on a question-by-question basis. The tactical use of Executive Privilege in this case is clearly designed to obstruct Congress’s inquiry into the U.S. attorney’s matter altogether.

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