House sues Bolten, Miers for testimony

The House Judiciary Committee has filed a lawsuit to compel Josh Bolten and Harriet Miers to testify in the US Attorney firings scandal, now mostly forgotten. The lawsuit sets the stage for a resolution to the executive privilege claim by the Bush administration. It may also provide more closure on executive privilege than either branch of government will want:

The House Judiciary Committee filed a lawsuit on Monday seeking to force the White House chief of staff and the former White House counsel to cooperate with the committee’s investigation into the firing of a group of federal prosecutors.

The lawsuit, filed on behalf of the committee in federal District Court for the District of Columbia, names as defendants Harriet E. Miers, the former White House counsel, and Joshua B. Bolten, the White House chief of staff. The lawsuit seeks to compel Ms. Miers and Mr. Bolten to provide testimony and documents about the firing of nine United States attorneys. …

Mr. Bolten and Ms. Miers are subpoenaed as part of the committee’s yearlong investigation into the circumstances of the firings. Questions over whether politics played a role led to an uproar in Congress and calls for the resignation of former Attorney General Alberto R. Gonzales, who stepped down last summer.

At the time of the House vote, the White House said it had tried to cooperate with the committee and provide evidence short of direct testimony. Both the White House and Attorney General Michael B. Mukasey, Mr. Gonzales’s successor, have said the Ms. Miers and Mr. Bolten do not have to testify before the committee because of executive privilege. The Judiciary Committee said the Justice Department had declined to pursue the contempt citations, which led to the filing of the civil lawsuit.

Congress has spent the fourteen months gnawing on this bone and gaining nothing more than demonstrating the incompetence of Alberto Gonzales. Their investigation has failed to produce any evidence of illegality or corruption, and in fact has underscored the fact that US Attorneys serve at the pleasure of the presidents who appoint them. Calling Bolten and Miers to testify amounts to nothing more than a fishing expedition, a way to create exactly this kind of standoff.

Presidents have zealously protected executive privilege, both Democrats and Republicans, and for good reason. Absent specific evidence of lawbreaking, presidents have to have a reasonable expectation of privacy between themselves and their political advisers. Heads of agencies, such as Cabinet officials and lower ranks, do not qualify as the two branches share responsibility for their operations. Chiefs of staff and White House counsel — the attorney that advises the President in his official duties — fall into a completely different class.

If Congress had evidence of lawbreaking, they could forward that to the Department of Justice for investigation. In this case, they have nothing; they just want to see if they can set some perjury traps for Bolten and Miers in their ongoing war against the Bush administration. They claim they have oversight over the executive branch, but just as the government doesn’t have the right to subpoena people without the existence of a crime, neither does Congress regarding White House advisers.

The courts will hash this out, and will enter some very unchartered territory. Usually, these games of chicken end before they get to federal court, because neither branch wants the judiciary to map the boundaries of executive privilege. Someone will lose in that exchange — and most likely it will be Congress, especially in this case. Without evidence of a crime, the courts will likely reject these kinds of subpoenas as an abuse of Constitutional power.

Ironically, Congress won a similar argument last year, at least in part, when it told an appellate court that the FBI’s search of William Jefferson’s office violated the separation of powers between the two branches. Ample evidence of criminality existed for the Jefferson case. The court found that the separation of powers should have required the FBI to at least allow Jefferson to review documents before the FBI seized them in order to allow Jefferson to make claims of legislative privilege.

Now, with nothing more than a political hit job at risk, they want to essentially make the FBI’s argument against Bolten and Miers. They may wind up with a much larger definition of executive privilege than we have at the moment, but in their blind rush to score a few more political points, they risk not just their own standing but the standing of future Congresses against executives as well.