The name Harriet Miers appeared before a House Judiciary subcommittee July 12, printed neatly on a folded paper placard that rested conspicuously on an unoccupied desk. The person Harriet Miers never showed.
Democrats on the subcommittee fumed over the former White House aide's failure to honor their subpoena for testimony in an ongoing investigation into last year's firings of nine U.S. attorneys: "I can't fathom a private citizen getting a subpoena to come before this body and not showing up," said Rep. Steve Cohen (D-Tenn.). "What we've got here is an empty chair. I mean, that is as contemptuous as anybody can be of the government, of the process, of the country."
But Miers was simply following direct orders from President George W. Bush, who has invoked executive privilege to prevent public testimony from his aides and to block the release of Republican National Committee email accounts used by chief advisor Karl Rove and other White House officials. Bush has suggested that Congress meet privately for non-transcribed interviews with members of his staff. Ranking Democrats have hotly rejected that offer.
Such unwillingness to compromise sets the stage for a possible showdown in court over the extent of executive privilege protection. Legal scholars differ widely over whether the president or the Congress would hold a stronger case in such litigation. Executive privilege is a well-established piece of the constitutional system but has rarely faced legal tests. Past presidents have satisfied challenges to the power through negotiation to avoid court proceedings.
Bush has shown no inclination of backing down, leaving Congress only one remedy: hold Miers in contempt. With Democrats in control of the House, the majority vote necessary for such action is possible, if not probable.
But the acquisition of a contempt citation against Miers would not necessarily hand the Democrats victory-or even their day in court. Congress has cited 10 Cabinet-level or top executive officials for contempt since 1975, and none of those cases has yielded prosecution, much less a conviction. Upon a finding of contempt, the House would refer the matter for enforcement to U.S. Attorney for the District of Columbia Jeffrey A. Taylor, the final arbiter on whether to indict.
In a similar 1982 case, President Ronald Reagan invoked executive privilege in directing Environmental Protection Agency administrator Anne Gorsuch Burford not to turn over documents on the enforcement of hazardous-waste laws. Congress cited Burford for contempt, but the Justice Department encountered a judge who would not hear the arguments until both parties sought every avenue of compromise.
Pepperdine law professor Douglas Kmiec, who served as assistant attorney general under Reagan and former President George Bush, believes history could well repeat itself: "One of the things we may see on the basis of that precedent is the court being very reluctant to act with any kind of speed and enjoining upon the executive and the legislature to try and once again accommodate each other."
Such accommodation proved possible in the case of former White House political director Sara Taylor, who testified before the Senate Judiciary Committee one day before Miers was slated to make her appearance in the House. Taylor answered many questions but invoked executive privilege to dodge others, straddling the line effectively to satisfy both Congress and the president.
Kmiec believes Bush would do well to similarly diffuse the Miers situation, lest he lose a court battle that would diminish executive power on the brink of a far more important matter: The president will need executive privilege protection to guard against Democratic investigations into the rationale behind his controversial terrorist surveillance program.
"In this particular instance, while in the abstract the president has a principle that can be defended, it arises in the context of a dispute that should have been avoided by better management," Kmiec told WORLD. "To litigate an important constitutional principle in the context of bad facts, when you need this very principle for the safety and security of the nation in short order, is an invitation for bad law.
"The president needs to be advised to be prudent about the exercise of power and privilege that he has, and I'm not sure he's getting that advice at the moment."