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.
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