Peter Allen once sang, “Everything old is new again,” and that’s never more true than in Washington. Congress has taken an interest in White House political activities and demands testimony from the president’s political director to see whether actions in the West Wing cross the Hatch Act line, and the White House claims executive privilege. Is the witness Harriet Miers, or David Simas? Welcome to DC déja vu:
The White House said Tuesday night that it would refuse to allow its director of political strategy to testify Wednesday before a Republican-led House committee investigating whether the administration had illegally conducted political activity in the West Wing.
In a letter to Representative Darrell Issa, the chairman of the House Committee on Oversight and Government Reform, the president’s top lawyer said that as a member of the executive branch the political director, David Simas, had immunity from being compelled to testify before Congress.
Mr. Issa’s committee subpoenaed Mr. Simas last week, contending that the White House should not have opened the Office of Political Strategy and Outreach this year. Mr. Issa told the White House in May that “the American people have a right to know if their tax dollars are being spent to support congressional campaigns during the 2014 midterm elections in violation of federal law.”
The White House response called this a fishing expedition, challenging Issa to come up with any evidence of the law being broken at all. Issa, undaunted, plans to hold the hearings anyway, and rebutted the executive privilege claim with the precedent set by Democrats during the Bush administration:
In a statement issued Tuesday night, Issa said he would proceed with the hearing to find out whether “President Obama actually intends to assert executive privilege.”
The California Republican said a federal court had “already rejected” the notion senior presidential advisers were exempt from congressional subpoena. He pointed to a 2008 ruling in which a federal court ruled that Bush advisers Harriet Miers and Josh Bolton must obey congressional subpoenas.
“Flouting a federal judge’s opinion about our system of checks and balances is yet another attack on our Nation’s Constitution by this President,” Issa said.
“Assertions that this Administration’s taxpayer-funded political efforts should be above Congressional oversight are absurd,” he added.
Issa is investigating the relaunch of the White House Office of Political Strategy and Outreach earlier this year. The Republican lawmaker says he’s concerned the White House has used staffers for partisan campaign activities, which are prohibited under the Hatch Act.
Let’s just say that the executive privilege claim is a little murkier than it normally would be, thanks to the Miers precedent. Democrats insisted that the demands for resignations from several US Attorneys — who are presidential appointees, serving at the pleasure of the President — was a scandal, and began Congressional investigations into the terminations. The Bush administration’s offer of private, off-the-record interviews with both Miers and Josh Bolten was rejected by Nancy Pelosi, and the House voted both in contempt for refusing to appear — even though there was nothing illegal about asking for resignations from political appointees and both officials were in the circle of advisers normally covered by a privilege claim. As noted, a federal judge sided with Congress, although the Supreme Court never weighed in on the question. And in the end, nothing came of the so-called scandal.
Pelosi’s actions established a carte blanche for this kind of aggressive demand, and it’s doubtful that then-Senator Obama had much objection to it. Issa may or may not be conducting a fishing expedition, but Obama and his fellow Democrats have certainly fished out a petard. This investigation into the political activities of the current administration probably won’t produce anything memorable either, except the hypocrisy of hiding behind claims of executive privilege and a lack of evidence of any wrongdoing. That wasn’t the Democratic standard in 2007-8.