Today’s Must ReadHarriet Miers had some backup.
The Los Angeles Times points out something that we didn’t stress yesterday about Miers’ refusal to appear at the House Judiciary Committee hearing today even though under subpoena. And that’s that Miers and the White House are relying on a new opinion by the Justice Department, dated July 10th, that argued that “the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.” The opinion was described in White House counsel Fred Fielding’s letter to Miers’ attorney.
Update: You can read the opinion here.
The opinion, as paraphrased by Fielding, says it’s not even close:
“…this constitutional immunity exists to protect the institution of the Presidency and, as the Department’s opinion illustrates, this position has been shared by numerous Administrations, Republican and Democratic, for more than 60 years.”
The Times of course rolls out a couple legal experts to say that the Department is, to put it mildly, overstating the case.
But there’s a likely practical effect to the opinion, as the Times points out: it does more than just provide Miers and the White House some cover, it “raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt for not cooperating with the investigation.”
If Congress were to vote Miers in contempt of Congress, the U.S. attorney for Washington, D.C. would be charged with enforcing it — something less likely to happen if his Department has taken such a view.
Now, there are other ways for Congress to pursue their citation of contempt if the U.S. attorney refused to enforce it, and as I reported earlier this week, it seems likely that somehow, some way, the whole mess will land in court. And if it gets there, the Department’s extraordinarily expansive view of privilege will finally be put to the test.
Meanwhile, it’s all made Chairman John Conyers’ (D-MI) decision about whether to move for a contempt citation much easier.