So by now Harriet Miers’ refusal to comply with a subpoena due to “executive privilege” is fairly well established. So the claim goes, she isn’t bound to show up in court and testify because the President says he has that wacky privilege. And it seems that, amazingly, Congress is going to do something about it.
Over the strenuous objections of Republicans, a subcommittee cleared the way for contempt proceedings by voting 7-5 to reject Bush’s claim of executive privilege. He says his top advisers, whether current or former, cannot be summoned by Congress.
“Those claims are not legally valid,” Rep. Linda Sanchez, D-Calif., said of Bush’s declaration. “Ms. Miers is required pursuant to the subpoena to be here now.”
And then Mr. Stupid shows up.
“If the House Judiciary Committee wants to avoid confrontation, it should withdraw its subpoenas,” said White House spokesman Tony Fratto. “The committee is rejecting accommodation because they prefer just the kind of political spectacle they’re engaged in now.”
See, here’s the thing. A subpoena is not something that can be rejected or accepted, even by the president. If Congress issues a subpoena, it is binding. You don’t have a choice, you have to show up. As Hunter over on DailyKos noted, executive privilege may be invoked in order to avoid answering certain questions, but Miers is legally required to show up, period, no debate.
The only way for this claim to hold water would be if Bush et al truly believe that his “executive privilege” extends to, well, everything. There is no legal precedent for this, and in fact there have been multiple cases of people being held in contempt of Congress over such refusals (though the subjects eventually complied). In order to believe that this is valid, then we would have to believe that the president can order things on the fly and his various privileges allow him to do so.
As Hunter noted, Miers can refuse to answer certain questions, but she can in no way refuse to show up at all. Yet the debate plugs along…
Rep. Chris Cannon of Utah, the ranking Republican on Sanchez’ subcommittee on commercial and administrative law, warned Democrats that a contempt citation would fail evidentiary standards in court.
“You can’t go to the courts essentially and say, ‘We don’t know what we don’t know, therefore give us a subpoena so we can find out,’” Cannon said.
“There is no proof whatsoever that Harriet Miers likely holds some smoking gun with respect to the U.S. attorney situation,” added Rep. Ric Keller, R-Fla.
Unfortunately, Cannon’s point is stupid and Keller’s is irrelevant. It doesn’t matter what Miers does or doesn’t know, what matters is that her testimony is pertinent to an investigation, thus the subpoena is valid, and the subpoena has been issued and so she is now obligated to appear in court. She doesn’t need to have a smoking gun, court appearances aren’t mandatory only when the person in question has something really important to say. As far as I know, I can’t just not show up when subpoenaed because I didn’t have anything particularly groundbreaking to say on the matter.
This debate should not exist. We can argue what Miers does and doesn’t have to say while on the stand, but we cannot argue about whether or not she has to get up there at all. She does, and we are left with one of two options:
- The president, his administration, and the GOP in Congress are completely oblivious of the law.
- They are perfectly aware of the law but are willfully defying it.
Pick your poison, I suppose. Either way, these people should not be running our country. And by the way, a TPM reader did note that this seems fairly cut and dry…
Invoking a privilege is one thing, but telling a person not to show up in response to a subpoena — if only to actually invoke the privilege — is quite another. It’s not just worse, it’s a felony under federal criminal law. See for yourself.
18 U.S.C. Sec. 1505 : … Whoever corruptly … influences, obstructs, or impedes … the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress … [s]hall be fined under this title, [or] imprisoned not more than 5 years … or both.
18 U.S.C. Sec. 1515(b): As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including … withholding, [or] concealing … information.
