What will executive privilege mean for Harriet Miers and Sara Taylor?

War Room talks with two experts on executive privilege to see whether the White House can stop its former employees from appearing before and/or testifying to Congress.

By Alex Koppelman

Published July 10, 2007 1:20AM (EDT)

If you're like us (and, it seems, many of the reporters working on this story today) then you're probably confused as to what President Bush's invocation of executive privilege regarding the potential testimony of former White House staffers Harriet Miers and Sara Taylor actually means.

We turned to two experts -- Mark Rozell, a professor at George Mason Unversity's School of Public Policy who wrote "Executive Privilege: Presidential Power, Secrecy and Accountability," and John Dean, who, by dint of his time as former President Richard Nixon's White House counsel at the height of Watergate, knows a little bit about the subject -- for insight.

It appears that -- despite most of the discussion today, which centered around a belief that what the White House has done is told Miers and Taylor not to appear at all -- the administration has little or no power over the two, and cannot by itself force Miers and Taylor not to appear or not to answer questions.

"If Harriet Miers or Sara Taylor, both private citizens ... want to appear before a congressional committee and answer questions, I don't think the administration has any legal basis to stop them," Rozell said. "Now, I think there is some validity to the argument that executive privilege on certain matters does attach to former White House employees. But that would not stop either Miers or Taylor from appearing before a committee ... [And] there's nothing to stop members of Congress from asking anything they want to ask. I see no legal recourse by the courts or by the executive branch. It is incumbent on the witnesses to not answer questions [on the grounds of executive privilege] and to explain that."

Rozell added that he believes there are some questions on which Miers and Taylor could legitimately invoke executive privilege and refuse to answer.

Dean had a different take. By e-mail he told Salon, "If [Taylor and Miers] insist on going forward, then the White House would have to go to court to try to get a restraining order. (It is not known if these people signed a confidentiality agreement with Bush, which would enable him to prevent them from testifying on the basis on their contractual obligation.)"

Rozell doubts, though, that the White House would actually seek such an order.

"I find it highly unlikely that they would do that," he said. "It would certainly test the legal limits of what the White House can do to prevent testimony ... I think what the White House has to rely on is the loyalty of former employees."

As we previously reported, a spokesperson for the Senate Judiciary Committee told us earlier today that they have heard from Taylor's lawyer and Taylor will appear before the committee as scheduled on Wednesday. (As we noted in our original post, that could not be confirmed with Taylor's lawyer, W. Neil Eggleston, who did not respond to requests for comment.) What Taylor will actually do and say once she gets there, though, is anyone's guess, and whether Miers will appear as scheduled before the House Judiciary Committee on Thursday is also unclear. Miers' lawyer did not respond to requests for comment.

Congress' recourse in a situation like this, if Taylor or Miers chooses not to appear or not to testify fully, is to pursue a citation for contempt of Congress, which would have to be approved by a majority vote of the relevant chamber and would then be passed on to the U.S. attorney for the District of Columbia.

A spokesperson for the House Judiciary Committee would not comment on whether Rep. John Conyers would seek such a citation against Miers if necessary.

"The chairman has said that he will seek full compliance with the subpoena," the spokesperson said. "That's the most I can say."

Part of the uncertainty over what exactly will happen here and who has the power to compel people to appear and/or testify -- or not to appear and/or testify -- stems from the fact that claims of executive privilege have traditionally not actually faced a definitive test in court.

"Frankly, it rarely gets to this point, where both sides dig in so deep and it looks like it's going to have to be decided by a court," Rozell said. "Usually, both sides come to an agreement before it gets this far."

Dean says he believes "Congress should have the better legal argument" in this case.

"[B]ut," he said, "given the political makeup of the DC Circuit and a Supreme Court that could issue Bush v. Gore, it may be votes not better arguments, unfortunately."

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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