Privilege
Congress wants to talk to Harriet Miers. No, not about her suitability to serve on the US Supreme Court; that idea bit the dust in October of 2005 (1). Rather, she was subpoenaed to testify before the Subcommittee on Administrative Law of the US House Judiciary Committee about the firing of 93 US Attorneys by the Attorney General last year (2). Attorney Miers, former White House Counsel, refused to testify on instructions of her former boss, President George W Bush. The panel was so upset by this refusal that it voted 7-5 to hold the former Supreme Court nominee in contempt of Congress.
President Bush maintains that his advisors are immune from Congressional subpoenas, because requiring their testimony would compromise his right to get candid advice. This doctrine, known as "Executive Privilege", has been asserted by previous presidents, although the Constitution says nothing of the kind. The chairman of the Subcommittee, Rep. Linda Sanchez (D, CA) declared "These claims are not legally valid. Ms Miers is required pursuant to the subpoena to be here now."
Although he ran for President as a a conservative, since talking office George W Bush has consistently pushed the boundaries of federal power vis-a-vis the states and the people, and presidential power vis-a-vis the other branches of the federal government. Long before this assertion of Executive Privilege, Bush has maintained the right of the President to order secret wire taps without warrants, hold people prisoner without trial and without counsel for indefinite periods, and to ignore some provisions of laws he signed himself. (3)
As recently as the presidency of Harry Truman conservatives have objected to the expansion of the power of the president. Older readers will recall that conservatives denounced Truman's seizure of US steel mills in 1951 (done to break a strike); the US Supreme Court held the action unconstitutional. However, when President Richard Nixon sought to expand the powers of the presidency still further, and keep many of his actions secret from the Congress and the people, most conservatives went along without objection, since they liked his policy goals.
When a committee of the US Senate subpoenaed White House aides to testify about the Watergate Scandal in the summer of 1973, Nixon invoked Executive Privilege to excuse them from complying. However, after a number of these men (such as John Dean, H R Haldeman and John Ehrlichman) lost their White House jobs, they trooped down to Capitol Hill and sang like canaries.
It was during these hearings that the White House taping system was revealed, and within a few months Special Prosecutor Leon Jaworski demanded that the tapes relating to Watergate be turned over to his office. The Nixon White House stonewalled Jaworski's subpoenas, and the case went all the way to the US Supreme Court .
On July 23, 1974, Chief Justice Warren Burger delivered this opinion, speaking for the Court:
"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail.....(4)" Nixon, faced with the Court order to surrender the incriminating tapes, resigned on August 8.
Twenty four years later President Bill Clinton, faced with a probe into his relationship with Monica Lewinsky, also invoked Executive Privilege numerous times to prevent Independent Counsel (aka Special Prosecutor) Kenneth Starr from obtaining needed records and testimony. Clinton tried to block the testimony of his Secret Service agents by asserting that unless they were excused from testifying, future presidents would endanger their safety by keeping the agents out of earshot of their activities. The agents did testify, and Clinton was impeached, but not convicted. After the Senate trial, Clinton did not introduce legislation exempting Secret Service agents from testifying in the future. (So much for Bill Clinton's concern over the safety of his successors. His wife Hillary has not yet promised to propose such legislation in her own presidential bid, perhaps because she has nothing to hide from the Secret Service.)
The dispute now brewing over the firing of federal prosecutors is different, in that no criminal investigation is involved. (Although it is possible that Atty. Gen. Alberto Gonzales perjured himself before Congress on the firings, which would be grounds for impeachment and prosecution.) If you are worried that Harriet Miers might wind up in the federal slammer for contempt of Congress (5), don't be-------in the unlikely event she is convicted of contempt, she will receive a full pardon from President Bush before she serves one minute behind bars.
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(1) See the Glazerbeam of October 6, 2005 : "Questionable Nominee".
(2) Milwaukee Journal Sentinel, July 13, 2007.
(3)When Bush receives a bill from Congress containing some provisions he opposes, he signs the bill and issues a "Signing Statement" declaring those provisions unconstitutional. There is no way to override a signing statement, unlike a veto.
(4) As quoted in "The Right and the Power" by Leon Jaworski, page 244.
(5)Sometimes people without White House connections really do go to jail for contempt of Congress. In 1948 ten Hollywood screenwriters were sentenced to prison for refusing to testify about the Communist Party before the House Un-American Activities Committee (HUAC).
President Bush maintains that his advisors are immune from Congressional subpoenas, because requiring their testimony would compromise his right to get candid advice. This doctrine, known as "Executive Privilege", has been asserted by previous presidents, although the Constitution says nothing of the kind. The chairman of the Subcommittee, Rep. Linda Sanchez (D, CA) declared "These claims are not legally valid. Ms Miers is required pursuant to the subpoena to be here now."
Although he ran for President as a a conservative, since talking office George W Bush has consistently pushed the boundaries of federal power vis-a-vis the states and the people, and presidential power vis-a-vis the other branches of the federal government. Long before this assertion of Executive Privilege, Bush has maintained the right of the President to order secret wire taps without warrants, hold people prisoner without trial and without counsel for indefinite periods, and to ignore some provisions of laws he signed himself. (3)
As recently as the presidency of Harry Truman conservatives have objected to the expansion of the power of the president. Older readers will recall that conservatives denounced Truman's seizure of US steel mills in 1951 (done to break a strike); the US Supreme Court held the action unconstitutional. However, when President Richard Nixon sought to expand the powers of the presidency still further, and keep many of his actions secret from the Congress and the people, most conservatives went along without objection, since they liked his policy goals.
When a committee of the US Senate subpoenaed White House aides to testify about the Watergate Scandal in the summer of 1973, Nixon invoked Executive Privilege to excuse them from complying. However, after a number of these men (such as John Dean, H R Haldeman and John Ehrlichman) lost their White House jobs, they trooped down to Capitol Hill and sang like canaries.
It was during these hearings that the White House taping system was revealed, and within a few months Special Prosecutor Leon Jaworski demanded that the tapes relating to Watergate be turned over to his office. The Nixon White House stonewalled Jaworski's subpoenas, and the case went all the way to the US Supreme Court .
On July 23, 1974, Chief Justice Warren Burger delivered this opinion, speaking for the Court:
"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail.....(4)" Nixon, faced with the Court order to surrender the incriminating tapes, resigned on August 8.
Twenty four years later President Bill Clinton, faced with a probe into his relationship with Monica Lewinsky, also invoked Executive Privilege numerous times to prevent Independent Counsel (aka Special Prosecutor) Kenneth Starr from obtaining needed records and testimony. Clinton tried to block the testimony of his Secret Service agents by asserting that unless they were excused from testifying, future presidents would endanger their safety by keeping the agents out of earshot of their activities. The agents did testify, and Clinton was impeached, but not convicted. After the Senate trial, Clinton did not introduce legislation exempting Secret Service agents from testifying in the future. (So much for Bill Clinton's concern over the safety of his successors. His wife Hillary has not yet promised to propose such legislation in her own presidential bid, perhaps because she has nothing to hide from the Secret Service.)
The dispute now brewing over the firing of federal prosecutors is different, in that no criminal investigation is involved. (Although it is possible that Atty. Gen. Alberto Gonzales perjured himself before Congress on the firings, which would be grounds for impeachment and prosecution.) If you are worried that Harriet Miers might wind up in the federal slammer for contempt of Congress (5), don't be-------in the unlikely event she is convicted of contempt, she will receive a full pardon from President Bush before she serves one minute behind bars.
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(1) See the Glazerbeam of October 6, 2005 : "Questionable Nominee".
(2) Milwaukee Journal Sentinel, July 13, 2007.
(3)When Bush receives a bill from Congress containing some provisions he opposes, he signs the bill and issues a "Signing Statement" declaring those provisions unconstitutional. There is no way to override a signing statement, unlike a veto.
(4) As quoted in "The Right and the Power" by Leon Jaworski, page 244.
(5)Sometimes people without White House connections really do go to jail for contempt of Congress. In 1948 ten Hollywood screenwriters were sentenced to prison for refusing to testify about the Communist Party before the House Un-American Activities Committee (HUAC).
Labels: Bush, Executive Privilege, Miers
posted by Gerald S Glazer at 2:44 PM
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