Is the White House trying to force Congress' hand?

Two legal experts think that by telling former White House counsel Harriet Miers not to appear at all, the administration is daring Congress to be the one to take the case to court.

By Alex Koppelman

Published July 12, 2007 1:45PM (EDT)

If all goes as expected, former White House counsel Harriet Miers will not be appearing for the congressional hearing at which she was subpoenaed to appear, which is scheduled to begin just a few minutes after the publication of this post. This marks a new step in the ongoing fight between the White House and Congress over the investigation into the firing of nine U.S. attorneys, a step that, two legal experts tell Salon, could suggest a deliberate strategy on the part of the Bush administration to force Congress to the courts.

Normally, these kinds of executive privilege fights are resolved by negotiations between the parties before they ever get to court. And if they do go to court, says Marty Lederman, who teaches separation of powers at Georgetown University's Law Center and blogs at Balkinization, it's the White House that's the one to take the first step to the courts, seeking to block the testimony of witnesses or production of documents they feel are covered by the privilege.

"The proper process," Lederman says, "should have been they say, 'OK, we're prepared to testify' and the White House goes to court. Taylor and Miers are turning the tables and putting the burden on Congress to go to court, one house or the other. That's why they're doing it."

By e-mail on Wednesday, John Dean, who was the White House counsel under former President Richard Nixon during Watergate, agreed.

"It appears [the administration] saw the poor light they were placed in today when Taylor appeared before the Senate Judiciary Committee, and want to stop the bleeding, and get to court sooner rather than later. By not showing, the White House is inviting the House to find Miers in contempt."

Lederman calls this situation "fairly incredible."

"I mean, that's new," Lederman said, "and I think quite extraordinary."

Contacted by Salon on Wednesday, Jonathan Godfrey, a spokesman for the House Judiciary Committee, would not say what the committee was planning to do if Miers did not appear, or whether it would consider a citation for contempt of Congress. Tracy Schmaler, a spokeswoman for the Senate Judiciary Committee, said that no decision had been made as to whether that committee would seek a similar citation against former White House Political Director Sara Taylor, who did appear for her testimony yesterday but cited the president's invocation of executive privilege on many occasions to avoid answering certain questions. Schmaler said that decision would most likely wait until the committee had a chance to review a transcript of Taylor's testimony, ask her any follow-up questions and receive her answers to those questions.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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