Constitutional Law

Executive Privilege Showdown Looms


Congress is clearing the way for an unprecedented court battle with the White House over executive privilege.

Following former White House counsel Harriet Miers’ refusal today to obey a subpoena and appear at a House subcommittee hearing on the alleged dismissal of nine U.S. attorneys as part of a political purge, the panel voted 7-5 that the privilege assertion was out of order. The next step would be for the full Judiciary Committee to hold her in contempt, and, if that happens, Congress would then have to vote to do so to pursue the issue, reports the Associated Press.

By not appearing, Miers was following the instructions of President George W. Bush, who contends that Congress doesn’t have the power to subpoena his aides. Some members of Congress now say they have no choice but to pursue this important constitutional issue, AP reports. In the past, such head-to-head confrontations between the legislative and executive branches of government have been avoided by negotiated agreements.

John Conyers (D-Mich), who chairs the House Judiciary Committee, says it must now take action to preserve legislative authority. “Are congressional subpoenas to be honored, or are they optional?” he asks rhetorically. “Apparently, we have to run this out.”

Others contend, however, that such expressed concerns are political posturing by a now Democrat-controlled Congress. Legal experts say it is unclear whether the executive privilege Bush is asserting does, in fact, allow him to prevent senior White House aides from testifying before Congress when subpoenaed to do so.

A court decision on whether Congress has the power to require Miers to testify could go either way, says Sanford Levinson, a law professor at the University of Texas. “If I were advising the congressional committees,” he tells AP, “what I would want to argue is that they have evidence that she was involved in what might have been criminal acts; that is, subordination of civil service hiring to unlawful considerations.”

Miers’ non-appearance is discussed in another ABAJournal.com post today, as is the limited testimony of another White House aide, Sara Taylor, in ABAJournal.com posts yesterday and today.

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