John Dean, a man who needs no introduction, has a superb article posted over at FindLaw's Writ. I highly recommend reading his article in its entirety.
A few thoughts here:
- We are all getting a civics education that none of us probably expected--and perhaps wanted. Although there is perhaps a silver lining here, it is still bitter sweet. It is a sorry state of affairs that it has even come to this. I have no idea how this one will ultimately play out -- I suspect I am not alone.
- We also must remember that this guy, George W., is represented by is a lawyer who knows what he is doing, and who has had several decades to think about the Watergate case. I suspect Fielding has probably spent nights awake trying to envision ways to win--not because his cause was just, but just because that's what he gets paid to do. Unlike W. he is a professionals professional.
- Winning this battle will likely be as much about knowing the mind of the adversary as anything. This is not time for misunderestimation.
Here are some thoughts from someone who knows the legal mind of Fielding better than most of us (follow me to the flip):
In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush's White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress.
We should hope and pray, and urge the Congressional leadership not proceed recklessly here. More than a little is at stake with this one.
As has been pointed out by KagroX and tonight by Elwood Dowd we are heading right now, not to the Courts, but in all likelihood to the dusty stacks of the Congressional library -- to the sections containing Cannon's and Hind's Precedents (compilations of parliamentary procedure undertaken during past Congressional sessions).
In Dean's article he also reiterates that we face three possible courses of action here--two with the likely prospect of a loss, one which might yield the desired result (i.e. an end to Bush's reign of terror):
- Would be to for the House to find Miers in contempt and to refer the matter as a criminal matter to the U.S. Attorney in D.C. Given that the DoJ has direct oversight of this office, and given recent precedent, it is almost assured that Bush's DoJ will intervene and prevent further prosecution.
- Would be for the House to find Miers in contempt and to proceed with a civil action against her. Once again, it's likely that too many pitfalls await the Congress here with Republican judicial appointees likely refusing to intervene on the basis of this being a political matter best resolved by the Executive and Legislature (which would mean that the Bush obstruction would stand).
- Would be for the House to find Miers in contempt and to "take action against her in front of the bar of the House" employing procedures that have fallen out of use for the better part of the past 70 years. Dean cites strong legal precedent here for this course of action -- stating that in all likelihood this the only real option left to the Congress.
Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.
If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.
Once again, I highly recommend reading Dean's fine article in its entirety at: FindLaw's Writ.