Harriet Miers and the Privilege Dodge

by Kagro X

Th' Preznit and Manuel Miranda don't agree on much about Harriet Miers, but they agree on this: Stonewalling the Senate Judiciary Committee on document requests is a good strategy.

Bush, of course, pretends it's a matter of principle. For him, it's "a red line I am not willing to cross."

Miranda is more candid. He calls it, "a magic bullet,'' which, "allows the president to say `I have to defend the integrity of the White House.''' Then, of course, he can pack up the Miers tent and ask for a do-over.

This is familiar ground, or so the White House would like you to believe. After all, they used the same excuse to stonewall the Committee on the John Roberts papers, and it worked. Why, I'm not entirely sure, especially when Russ Feingold, who voted for Roberts, has told the Milwaukee Journal Sentinel that Miers' obligation to turn over documents is greater than Roberts', because she's less experienced. That strikes me as odd, of course, since everybody else's basis for permitting Roberts to get away with the non-disclosure was executive/attorney-client privilege, a different issue entirely.

But speaking of different issues entirely, here's Dianne Feinstein, who voted against Roberts, on the need for disclosure from Miers:

We have a need to know what issues she has been involved in,'' Feinstein said. ``If the man who brought her to the position had a case before the court, clearly, in my view, she should recuse herself.

Quite so. But I don't recall this coming up as a serious issue with Roberts. Do you? If not, why not? Recusal was certainly an issue during his hearings. How are we to know when recusal is proper if we're forbidden from knowing whether or not Roberts worked on a given issue?

The same standard, as Feinstein notes, must apply to Miers.

Even so, th' preznit is sticking to his guns. Or so he believes:

"People can learn about Harriet Miers through hearings," Bush said, speaking briefly to reporters after a Cabinet meeting, "but we are not going to destroy this business about people being able to walk in the Oval Office and say, 'Mr. President, here's my advice to you, here's what I think is important.' And that's not only important for this president, it's important for future presidents."

The thing is, not only would disclosure clear up recusal issues (and that's not only important for citizens coming before this Supreme Court, it's important for citizens coming before future Supreme Courts), but disclosure doesn't really even "destroy this business about people being able to walk in the Oval Office and say, 'Mr. Prezident, here's my advice to you, here's what I think is important.'"

What it should "destroy," if its capable of destroying anything at all, is this business about presidents being able to walk into the Senate Judiciary Committee and say, 'Senators, I'm nominating my own staffer to the Supreme Court."

Comments

[Mimikatz]

Whether Bush has accepted it or not, it would seem that the Miers nomination hangs by a thread, and that thread is probably indictments. If top Administration officials are indicted, how can the president's personal counselor possibly sit on the Supreme Court? It is that simple. The documents dodge gives him an out, or her a way to bow out.

And then we will get to see just how weakened this president is and how willing Senators are to go out on a limb for him. My judgment is that if there are indictments, say Libby and Hadley for major crimes and Rove for the coverup, and a few lower downs, maybe also the original leaker, not so much. If Rove survivies to direct the savaging of Fitzgerald, things may be so ugly the public turns away in disgust at the GOP again. At least I can hope.

[emptywheel]

The real irony is that, if Cheney is indicted or made to step down, then they've lost their guy who can trigger the nuclear option and they've lost one vote in the Senate.

[Kagro X]

Killing presidential nominations because the White House is under indictment, and the nuclear option goes down with it.

It's like the Harmonic Convergence or something!

[DemFromCT]

Cheney's not indicted yet nor has he stepped down. Hey, someone had to say it.

we'll know more tomorrow after the announcement and according to the FT, even more friday. But how Miers withdraws will depend on howe this week goes.

[RonK, Seattle]

If Cheney steps down, they might be able to replace him with a guy (or gal) who could trigger the muclear option.

But suppose Cheney doggedly hangs on, with a continuing stream of investigations, disclosures, resignations, plea bargains, select committees, trials and convictions winding 'round his door?

He can still sit go down to the Senate and sit in the big chair -- but can he still command 50 votes to sustain the ruling of the chair, to overturn precedent and to seat a judge who may control his fate later in the courtroom drama?

[ScientistMom in NY]

RonK, I think the answer to your question about whether Cheney can command the votes, hangs on the attitudes of the public. I'm a little discouraged here, because from what I can tell even well-informed progressives are not following this situation closely. I think it's too complicated for any but the truly hard-core.

[jonnybutter]

I think it's too complicated for any but the truly hard-core.

It is complicated, but not necessarily that hard to understand: userpation. People understand it when the fix seems to be in, the -often fascile - cynicism of a lot of people's assumtion that the fix is always in notwithstanding.

[TenThousandThings]

I agree with SMNY that few people are following it closely, but I don't think it is because it's too complicated. I'd say it is because there is too much that is unknown. Only those with an interest in speculation can have much to say other than, "who the hell knows, only Fitzgerald. we'll have to wait."

emptywheel and others have made heroic attempts to come to terms with it all, but each time I've tried to read up on it I've hit a wall of uncertainty that made me turn away muttering the above. And I'm a historian who specializes in events that happened long ago and far away. So I'm used to constructing plausible contexts from incomplete and scattered fragments of evidence.

[TenThousandThings]

Ugh. Apologies to SMNY. My comment above is totally inappropriate for this thread about the Miers nomination. My comment is obviously about the Wilson affair.

TNH: feel free to delete it!

[jonnybutter]

I'm not quite ready to be smug about it, but I do think that there's a good possibility that the Unconstitutional Option-folly may end up biting its perpetrators, or at least receding. The UO can be a political weakness for the GOP, rather than a strength. I still like Kagro X's idea of making it a salient issue in the Miers hearings. If there aren't going to BE any Miers hearings, it's still something to keep in the quiver. If you're going to be outrageous - impeachment, gov. shutdowns, 2k election - it's best to get it over with, to 'get it behind us', to count on America being 'Amnerica'. Bringing it back for a second look is a bad idea for the GOP, IMO.

[ScientistMom in NY]

TenThousandThings, your comment was appropriate; the Wilson affair is exactly what I was talking about, prompted by RonK's musings about whether, assuming that he is not indicted or forced to resign, Cheney will retain enough power to control the Senate on things like SC nominations.

You make a good point about how hard it is to follow the story with only fragmentary information. Not everyone has the advantage of knowing about emptywheel. I'm hoping that the charges will have to do with treason/espionage/outing, and seen by all as far outside the bounds of politics as usual. I cringe when I read that the charges will be perjury/obstruction/conspiracy, or even civil rights violations, because I think that they would not get the attention of the general public in the same way.

[Praedor Atrebates]

I knew this would happen and I posted it at Kos early on. Bush selecting his personal attorney for the SCOTUS was a bombproof guarantee that Bush would (and "reasonably" could) claim the privilege defense and not release squat as far as substantive documents on Miers. Sure enough, that's his silly game plan.

As it goes, I am beginning to take somewhat of a shine to Miers. As seemingly incompetent as she is, she has repeatedly expressed proper positions on many contentious issues in the past. Her support for gays, her belief, being talked up at Pandagan that personal autonomy ought to be one of THE guiding principles on matters of social controversy. I do wonder though...when did she lose it and go all evantesticle? Her more progressive stands on such things as abortion (personal autonomy wins out) was in 1993. Was 1993 before or after she lost her marbles for Jaysus?

[Praedor Atrebates]

I wondered about the loss of Cheney wrt the nuk-u-lar option too. Depending on how it plays out, this could play the Dems way big time. If Cheney is dumped, as indicated, the nuke option is gone until the position is refilled. The Dems get to filibuster to their hearts content and save the Republic. If Cheney is replaced by some f*cktard like Rice...Rice is a choicer, not a wingnut prolifer. Does she vote her way or Bushies? Bush is dead meat politically so how much sway can he muster to drive even the fawning sycophant Rice to vote against lackluster moral fibers?

My hopes are that 1) Cheney DOES get the boot one way or another, 2) his position isn't filled swiftly enough to stop Dem filibusters on Luttig, Rogers Brown, and the like that will be put forth as alternatives to the failing Miers, and 3) a VP is chosen from the senate such that a Dem governor gets to replace that GOPer with a Dem. In each case the nuke option is off the table and the Republic is saved from unsuitable SCOTUS appointments.

[jonnybutter]

The vaunted, imaginary Gergen weighs in:

"It's not that the abuse of power here is anything like Watergate or Iran-Contra even," said Gergen, now the director of Harvard's Center For Public Leadership. "Rather it is, if indictments come, they may be of the people closest to the president and vice president of the United States. And they will re-open the wounds of Iraq, and people will ask the question, if indictments come, were we led into Iraq by criminal means?"

Gergen is kind of what we, in the under around 50 category, get for a 'Cronkite' nowadays. Limited utility. It's not much, but there it is: the pooh-bah contradicts himself, strategically, in one paragraph. The Eons are closing!