Anybody see a conundrum?

I do, and I think Bush’s Cheney’s lawyers do, too.

Why else would the president’s office forbid former counsel Harriet Miers from even appearing before the House Judiciary Committee on Thursday, just hours after former White House political director Sara Taylor was “allowed” to testify (if you can call it that) in front of the Senate Judiciary Committee?

Maybe it had something to do with the way Taylor exercised her executive privilege:

Ms. Taylor said she “did not attend any meetings with the president where the matter was discussed” and could not recall seeing any presidential directives about the firings. Asked whether Mr. Bush was involved in the firings, she replied, “I do not have any knowledge that he was.”

OK, so here’s the thing: If the matter of the attorney firings was not discussed—at least not in Taylor’s presence—and Ms. Taylor has no knowledge of Bush’s involvement in the firings, and the firings are all these hearings are investigating, then what exactly is privileged here?

Granted, even with the protection dubious claim of executive privilege, and her lawyer by her side, Sara Taylor still uttered more than her share of I-don’t-recalls and I-can’t-remembers, but if the chief executive was not involved with the matter at hand, then that executive’s claim to privilege doesn’t seem to be applicable.

Conversely, however, if the witness and the White House persist in arguing that conversations between Taylor and the president (or vice president?) are not to be discussed in the context of this hearing, then those conversations must have at least touched on the attorney firings.

By both saying that her conversations were devoid of this specific content, and still asserting Bush’s claim to privilege, Taylor has either committed perjury or abrogated the basis of the presidential order.

Which one is it, Ms. Taylor?

Now, if I can ask this question, you would think some Senator might be able to, as well. To their credit, Feinstein and Leahy came close, but they didn’t quite get there. Maybe I’m not the only guy who sees this coming; maybe somebody in close proximity to Harriet Miers thought that even if Senators didn’t quite make it, Representatives on the House Judiciary Committee would.

Given the shaky legal ground on which they already stand, maybe that’s a chance Miers’ patrons didn’t want to take. Or, to put it the way Senator Arlen Specter did when he addressed Sara Taylor (about her claim to executive privilege) at Wednesday’s hearings, “You might have been on safer legal ground if you'd said absolutely nothing.”


Update: A commenter at TPM believes that by ordering Miers not to appear before the House Committee—by ordering her to defy a subpoena rather than having her appear and assert executive privilege—President Bush has committed a felony.

(h/t DanK)


(cross-posted to Daily Kos)

What They Said, and What They Should Say

Well, surprise, surprise, President Bush has again defied Congress and again invoked a tenuous claim of executive privilege to do so:

President Bush directed former aides to defy congressional subpoenas, claiming executive privilege and prodding lawmakers closer to their first contempt citations against administration officials since Ronald Reagan was president.

It was the second time in as many weeks that Bush had cited executive privilege in resisting Congress' investigation into the firings of U.S. attorneys.

White House Counsel Fred Fielding insisted that Bush was acting in good faith in withholding documents and directing the two aides -- Fielding's predecessor, Harriet Miers, and Bush's former political director, Sara Taylor -- to defy subpoenas ordering them to explain their roles in the firings over the winter.

In the standoff between branches of government, Fielding renewed the White House offer to let Miers, Taylor and other administration officials meet with congressional investigators off the record and with no transcript. He declined to explain anew the legal underpinnings of the privilege claim as the chairmen of the House and Senate judiciary committees had directed.

Both House Judiciary Committee Chair John Conyers and Senate Judiciary Committee Chair Patrick Leahy have issued responses. Conyers was stern but polite:

We are extremely disappointed with the White House letter. While we remain willing to negotiate with the White House, they adhere to their unacceptable all-or-nothing position, and now will not even seek to properly justify their privilege claims. Contrary to what the White House may believe, it is the Congress and the Courts that will decide whether an invocation of Executive Privilege is valid, not the White House unilaterally.

While Leahy exhibited a bit more piss and vinegar:

I have to wonder if the White House’s refusal to provide a detailed basis for this executive privilege claim has more to do with its inability to craft an effective one.

But I have to wonder if Democrats are not missing the best and easiest argument to make in this and the other privilege cases. It seems to me that what needs to be said is something like this:

President Bush has again demonstrated his belief that he, and anyone else he designates, is above the law, but worse, he has asserted that his administration owes nothing to the American people. In this case, the president’s continued insistence that his aids will only meet with Congressional investigators in secret and without a transcript confirms such disrespect. Why is it OK for administration officials to talk to a select few in private, but not OK for them to talk in the open, in front of the people that elect the president and pay the salaries of his entire staff?

We think the American people deserve to hear what these Bush aids have to say. We believe that Americans are capable of understanding the facts of this case, and, more importantly, understanding right from wrong. Judging from the position taken by President Bush, either he believes that the people are incapable of understanding, or he is deeply afraid that they will understand all too well.

(cross-posted from guy2k)