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Dems Hint at Constitutional Showdown Over Miers' No-Show

Democrats on the House Judiciary Committee raised the ante Tuesday in their constitutional showdown with the White House, staring at the empty chair where former White House Counsel Harriet Miers was intended to sit and declaring President Bush's claim of executive privilege invalid.

Of course, the declaration has no force of law behind it, but it was a first procedural hurdle that congressional Democrats believe they need to clear as they begin, ever so slowly, to stack their investigative chips for a bet that they can beat President Bush in federal court over the privilege issue.

Miers, as expected, was a no-show for the Judiciary subcommittee hearing investigating the firings of nine U.S. attorneys last year, citing immunity from a subpoena because of Bush's exertion of executive privilege, which he argues exempts him from having his current and former West Wing aides discuss their deliberations regarding the firings. Her absence created a series of theatrical moves that will make for great TV-and-still-photographer images.

Shortly after 9:30 a.m., the committee staff opened the doors for the scheduled 10 a.m. hearing. The photographers stampeded into the chamber like a bunch of rock fans at a Who concert in the 1970s, breaking out the cameras in order to get the first shots of the empty table with a Miers name card sitting on it. One committee aide -- who apparently read Dana Milbank's "watershed" Sketch of Sara M. Taylor's appearance before Senate Judiciary yesterday -- yelled to another, "Make sure there's water on the witness table!" They both paused, and then broke into laughter since there'd be no witness today.

But Democrats quickly got down to business, with Rep. Linda Sanchez (D-Calif.) chairing the hearing of the commercial and administrative law subcommittee -- the entity that has led most of the probe on the House side. "The privilege claims here are weak," she said, as a constitutional debate ensued about privilege.

Republicans countered that Congress was likely to lose such a showdown over privilege, contending that Democrats need an underlying criminal act to beat the privilege claim, allowing them to demand the production of documents and testimony from the executive branch. "There is no criminal case like the Nixon case, which established these important privileges," said Rep. Tom Feeney (R-Fla.).

Democrats, however, noted that the White House is the only place left to look for documents and testimony in its investigation to determine whether anything criminal did happen -- that without that part of the investigation, a crime may go undetected. "I take seriously the presumptive privilege that the president has. But I think this president has abused that presumptive privilege, and the American people now recognize that they don't presume that his privilege extends nearly as far as the president asserts that it extends," said Rep. Mel Watt (D-N.C.).

The truth is Democrats have just about run out of targets to investigate within the Justice Department to get to the bottom of the firings. The White House is the only venue left, and they find themselves in a bind. Invoking this constitutional showdown -- finding the White House in contempt, prompting a federal grand jury investigation into the matter -- could take months or years before resolution. The other option is to take Bush's offer of essentially off-the-record interviews with top staff such as senior adviser Karl Rove, hoping they give enough information to fill out the pieces of the puzzle to know how the firings happened.

After today's actions, it's looking more and more like House Democrats have decided to bet heavily on the legal, judicial showdown. And, it appears Senate Democrats will be doubling down on that bet.

In a short interview with Capitol Briefing, Sen. Charles Schumer (D-N.Y.) said today that the Senate Judiciary Democrats will likely follow suit soon with a finding from Judiciary Chairman Patrick Leahy (D-Vt.) that the privilege claim is not valid. "We haven't yet plotted the course. But my guess is we're headed in the same direction as the House, which is toward contempt," Schumer said.

By Paul Kane  |  July 12, 2007; 4:02 PM ET
Categories:  House  
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Why is Bush falling on his sword for this issue? Sure the Dems are on a witchhunt, but how much of Bush's remaining credibility will he now lose? Bag Gonzales (who lied) and get this issue out of the news. The issue of executive priviledge is important, but this issue should never have come to this point. Duh...

Posted by: Jay M in NC | July 12, 2007 5:29 PM | Report abuse

There's an important principle here, and it should go to the courts. Let's assume that executive privilege is useful, but should an administration be able to hide criminal wrongdoing behind it? The alleged / admitted use of political considerations falls obviously outside the law. The president may be immune, depending on how "high crimes" are defined, but is the whole executive branch unreachable by law?

Posted by: JW | July 12, 2007 5:43 PM | Report abuse

Bush's only hope is to stonewall, distract and delay until he's out of office. If he has to go to the SCOTUS with such a weak case for executive privilege, he'll lose. Ironic. It was Nixon's attempt to use executive privilege to cover up Watergate that led to the weakening of the executive branch that led his former staffers, Rummy and Cheney to try to re-establish executive powers, only to have it used again to try to cover up more crime in the executive branch. You can't make this stuff up! Absolute power corrupts absolutely.

Posted by: thebob.bob | July 12, 2007 5:46 PM | Report abuse

This entire issue is a textbook example of Bush's stubborness, and incompetence.

Posted by: Jay M in NC | July 12, 2007 6:08 PM | Report abuse

Jay M, It seems to me that you're a reasonable person. Would you mind explaining to me why you're certain the Dems are on a witchhunt? I'm not saying, by asking this, that they aren't on a witchhunt, but I'm not convinced they are and I wonder if I've missed something that has made you so certain.

Posted by: Patrick Huss | July 12, 2007 6:34 PM | Report abuse

Patrick...I think we may both agree that there is likely something to hide here by the Bush team. Perhaps we can also agree that that this is politics as usual, by both parties, past present, and in the future.

Posted by: Jay M in NC | July 12, 2007 6:57 PM | Report abuse

The shield of Executive Privilege is the first shield in the Miers case, but the second may well be the attorney-client privilege. The situation raises a number of questions. For instance, does White House Counsel's privilege apply only to advice and counsel given to the Executive or does it also extend to the Executive's immediate staff? It would most likely cover both due to the nature of the position. The attorney-client privilege, however, is often waived for tribunals and there is also an exception for criminal conduct known as the crime-fraud exception. But piercing the privilege on the crime-fraud exception is difficult if Miers, an officer of the court, does not see a crime. Miers reluctance to aid and abet a mere fishing expedition for improprieties is understandable. It may be wiser to call on Miers when there is more substantial proof of illegal behavior on behalf of the Executive. Then again the attorney-client privilege should not apply to what she was exposed to before she was WH Counsel in addition to her interactions with those outside of the Executive and his immediate staff.

Posted by: Brian J. Gorman, Towson U., MD | July 12, 2007 9:32 PM | Report abuse

Until you address the 800 pound gorilla key to all of this disgusting unAmerican garbage nothing will get better or change..

That is the Federalist Society..!

These usurpers are key to all of these abuses and the direct threat to Our very system of governance..

The Justice Dept. is infested with Federalist Society sycophants and we see the disgrace and shame they have brought to it..

Our Supreme Court is now in reality The Federalist Society Court..

The majority the 5 Scalia, Alito, Thomas, Kennedy and even the Chief Justice himself John Roberts are all Federalist Society loyalists..

So Our very system is under great threat than ever before Karl Rove's slime trail leads right to The Fed-Soc front door..

The Justice Dept. will not enforce the Congresses Subpoenas and the Supreme Court will not uphold for The Congress the People's branch or the rule of law..

The Federalist Society will see it's dream of the Unitary Dictatorship advanced at all costs and every instance..

Every one of these plots has Federalist Society stench all over it..

The FISA Law violations, The NSA wiretapping, the firing of the 8 federal prosecutors who do you think replaced them how many of the replacements are Federalist Society Zombie Borg Clones..?

We are only one signature from full Dictatorship under NSPD-51 and HSPD-20 who do you think wrote these treasonous documents G.W. Bush..?

It's The Federalist Society and not al-Qaeda that is the greatest threat to our Republic..!

Jefferson said:

"Ours is not a system based upon trust, but one of suspicion..!"

He and Franklin and Madison others warned us of this vile cabal of usurper Tories The Federalist Society..

They are positioned and coiled like a snake about to strike the fatal blow to Our egalitarian Republic and the great American experiment of democracy forever..

Posted by: TJ Colatrella | July 13, 2007 11:53 AM | Report abuse

I meant to call the Federalist Society Zombie "Bork" Clones not Borg..sorry Gene..

Not much difference in reality though..!

Posted by: TJ Colatrella | July 13, 2007 11:59 AM | Report abuse

I suggest that Congress gives the Bush administration a deadline to comply with their request to give documents and allow all executive branch members involved in firing of prosecutors to testify. If they do not meet this deadline I would advise Congress to let the Executive branch know they will drag this investigation out until after Bush's term is complete. It would then be a gamble for them; if they lose there is no chance for avoidance or pardon unless the Democrats lose Congress or a Republican becomes President. The more I watch this evolve the more I believe that Bush's people used the DOJ, on occasion, to make or break cases for political party benefit. If that is true then the word justice has little meaning in this society and using the word democracy to explain what we are doing in Iraq comes from an executive branch that is bankrupt in integrity. They know just how frightening that would be if it came to be proven factual. It is also something we want to prevent in the future. No matter how long this drags out, Congress must start today to place safeguards from this every happening now that we see the loopholes that could cause it! I suggest the Democratic Congress press forward with this initiative immediately!!!

Posted by: BFein | July 13, 2007 12:27 PM | Report abuse

The House dems have an ace up their sleeve that John Dean revealed this week on Randi Rhodes' Air America show. "Inherent Contempt" gives the House the power to arrest and try Miers without getting the DOJ involved. The Supreme Court validated this power when the postmaster general was arrested and tried before the House in the 1903's.

Posted by: elaine munro | July 14, 2007 4:20 PM | Report abuse

Jay M...I'm pretty sure we can agree that it is politics as usual without agreeing its a witchhunt. Perhaps I'm just being obtuse, but if we agree that Bush and co. are hiding something, than haven't we agreed its not a witchhunt? Doesn't a witchhunt need to be a search for 'crimes' that don't, or even can't, exist?

I think the appropriate point may be that there are Democrats who don't care whether or not the Bush administration did anything wrong -they are exploiting a tactically advantageous situation for political gain. Agreed. I do think that there are enough politicians of both parties that have a heartfelt dedication to protecting the Constitution and the rule of law to give me confidence that Congress isn't being primarily motivated by Machiavellian urges. I hope I'm not wrong...

Posted by: Patrick Huss | July 14, 2007 7:01 PM | Report abuse

Ms Munro... a quick search for "inherent contempt" reveals that the hearing into "inherent contempt" would be presided over by the Senate President, aka The Vice-President. Call it a hunch, but I have a premonition that the current Vice-President may be somewhat reluctant to cooperate in such a preceding.

Posted by: Patrick Huss | July 14, 2007 7:16 PM | Report abuse

Federalist society or not - there is a basic and inherent contradiction in the constitution - "separation of powers" and "oversight". This is an unavoidable situation unless both the legislature and the executive are combined together like the British parliament. If the SCOTUS agrees to break the deadlock, then it becomes a 2 vs 1 deal. If the SCOTUS agrees with the congress, then it is essentially forcing the executive to reveal their inner workings - a blow to "separation of powers". If the SCOTUS agrees with the executive, it strikes a blow against "oversight". I think it is going to do the latter in this case and hold separation of powers to be greater than oversight.

Posted by: Newton | July 15, 2007 3:37 AM | Report abuse

Jay M in NC - I agree with you. This is ridiculous that this matter has gotten this far out of control. And from a political perspective, this will only pile on to the misery that the GOP will have to endure during the 2008 election. The Democrats will push this issue knowing full well will never get to the truth but it will achieve their real objective of gaining full control of two branches of government.

Never before in the history of the U.S.A. have we had a president that has thrown so many knives in the air. If it weren't for the lives and fortunes loss this would actually be funny to watch the president trying so desperately to hang on to dump this huge mess into the lap of his successor. So typical of George Bush's life. Make a mess and get someone else to clean it up.

Posted by: SteelWheel | July 16, 2007 10:30 PM | Report abuse

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