Here’s our highlight reel of this morning’s House Judiciary Committee hearing featuring Harriet Miers’ very empty chair:
Subcommittee chairwoman Linda Sanchez (D-CA) ruled Miers’ decision to abide by the White House’s claim of executive privilege as invalid — and was subsequently backed up by a party-line vote on the committee. That’s the first step towards finding Miers in contempt — the next would be a full vote in the committee.
To Democrats, the issue was simple. Miers was legally obligated to show up, and she didn’t. As Chairman John Conyers (D-MI) put it, “Are Congressional subpoenas to be honored or are they optional?”
The Republicans on the committee responded with their usual accusations of Democratic overreaching and claims that the U.S. attorney firings investigation had uncovered no evidence of wrongdoing by the administration. But ranking member Chris Cannon (R-UT) also offered a more nuanced argument against proceeding with contempt proceedings — without “evidence of criminality” on the part of the White House (he cited the example of Nixon), the House would likely lose the battle in court. And such a loss, he feared, would hurt the House’s ability to investigate the White House in the future.
Rep. Conyers (D-MI) didn’t think it was so complicated: “If we do not enforce this subpoena, no one will ever have to come before the House Judiciary Committee again.”
Rep. Tom Feeney (R-FL), who made it clear during the hearing that he’s a big fan of executive privilege, interrupted to say that this was a unique circumstance, and that it’s “not every day” that a witness produces a letter from the White House saying that he/she can’t testify. “I don’t think it’s ever happened before,” he said.
To which Conyers replied dryly, “It happened yesterday in the Senate Judiciary Committee.”
Note: Here’s Marty Lederman writing back in March on the argument that the courts require evidence of criminal wrongdoing to overrule an executive privilege claim. The short answer: there is no such requirement, although such evidence of criminality would certainly strengthen Congress’ case. It’s an entirely different question, of course, whether there really is no evidence of criminality in the U.S. attorney firings — which is at very least far from clear.