Sara Taylor, Harriet Miers and Executive Privilege

To be frank, I have only marginally followed the matter regarding Congress' desire to question former White House political operative Sara Taylor and former White House Counsel Harriet Miers. (Why is it when I write her name, all I hear in my head is that line from Mike Myers' movie So I Married an Axe Murderer, "Harriet, sweet Harriet"?) In essence, to me is seemed like a pretty open and shut case of executive privilege. The President is entitled to full, frank and private conversations between himself and his advisors. Similarly, his advisors need to be able to talk to each other without haveing a nosy Congress or the Courts, absent a compelling reason, poking their snouts under the tent flap. John Yoo writes about the matter:

Republicans aren't exactly racing to defend President Bush's assertion of executive privilege against Congress's investigation of his firing of nine U.S. attorneys. This leaves former political director Sara Taylor and Harriet Miers, former White House counsel, facing possible contempt sanctions. If this sword of Damocles drops, an important constitutional showdown between the branches might well reach the Supreme Court.

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president's right to keep internal executive discussions confidential. Even when the Supreme Court ordered Richard Nixon to hand over the Watergate tapes, it recognized "the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."

Without secrecy, the government can't function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents--even if their poll ratings are low.

Yoo goes on to point out the hypocrisy of Democrats who jumped to President Bill Clinton's defense and now attack President Bush. Yoo points out a critical difference--Bill Clinton asserted executive privilege on matters not related to his official duties, George Bush asserts privilege on matters at the heart of his Constitutional mandate as chief of the executive branch. The President's executive privilege is strongest in areas of diplomacy, national security and law enforcement.

The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved. Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.

That doesn't mean the president's power is limitless. Congress can conduct oversight needed to pass legislation. On the fig leaf that Congress is superintending the Justice Department's funding or statutory authorities, DOJ has accommodatingly turned over thousands of documents and made its senior staff available for testimony. Congress can always engage in good old-fashioned horse trading to get its way. If Senate Democrats really cared to see any of Mr. Bush's communications, as opposed to lobbing allegations of "scandal" endlessly on the front pages, they could refuse to confirm any new U.S. attorneys, high officials or judges until they got what they wanted. Not bothering suggests that there is no real wrongdoing here, just an intent to keep the scandal machine running.

the fact that Congress keeps bringing up the potential contempt of Congress charges against Ms. Taylor or Ms. Miers indicates that their legal advisors are telling them they have no leg to stand on legally, leaving only the political force of propaganda to get their way.

Let's assume that Ms. Taylor has information on the U.S. Attorney firings as does Ms. Miers. So what. The President fired them as was his right. No one would argue that the President can't fire the attorney general just because he didn't like Alberto Gonzalez's choice of necktie that day. Why then are the rules different for the Attorney General and the U.S. Attorneys? Is a firing for a subjective fashion faux pas ludicrous-sure, but that doesn't mean it is constitutionally suspect.

Let's assume further that Harriet Miers and Sara Taylor said the U.S. Attorneys should be fired for the very same reason--poor fashion sense in their eyes, or the fact that they were too tall, too short, too blond or went to Harvard instead of Yale. All of these reasons for dismissing someone are silly. Dismissing someone for not following orders is common practice in the private sector and should be in the public sector as well. The position of U.S. Attorney is a political appointment, is a political job at its heart and tenure on the job is subject to political whims.

Congress too has its own political agenda and the threat of contempt of Congress charges are part of its political theater. Congress can't seem to legislate anything so it is left with the only things it does well--investigate and spin.

Yoo points out that the dispure betweeen the President and Congress could go to the Supreme Court--and it could. But if it does, here is my guess as to what the Roberts Court will do---Nothing.

The Court should and probably will declare the dispute a political question and let the two sides sort it out themselves.