Executive privilege was diaried a few days ago, in a discussion that I missed, but I was motivated to explore this matter further after reading this article by John Dean, along with the news, being widely circulated today, that Al Gonzales was indeed supervising the whole sleazy prosecutor-replacing initiative. Here are Dean's closing sentences:
Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.
Now, as I understand the whole subpoena thing, they are given directly to individuals, not to the Executive Branch, and not to the President. But the President can order an executive branch employee not to obey the subpoena, and shield that individual by invoking executive privilege. The problem with Miers, again as I understand things, is that since she is no longer working for the President, he cannot order her to ignore a subpoena. If she were subpoenaed, she would be as obligated to appear as you or I. The President can ask her not to appear, but she would be vulnerable to a contempt citation. She could, out of loyalty to her former boss, refuse to appear, but once again, would be vulnerable to a contempt of Congress citation.
Now, in order to actually do something after charging a witness with contempt, the Department of Justice would have to get involved, because of course Congress has no judicial or executive power. Therefore, in the end, if everyone refuses to cooperate in the same manner outlined in Dean's article, in spite of no actual invocation of executive privilege, stalemate will be the result. (There is also the possibility that Bush will claim that he can extend the protections of executive privilege to anyone he damn well wants to, whether or not they are currently in the Executive Branch. That would be nasty, but it would change the argument a bit.)
However, if the officials involved, and Miers herself, for that matter, will not "go to the wall" for executive privilege when the witness is not even in the executive branch any more, then it's hard not to see Miers obeying a subpoena and, as Dean suggests, answering truthfully. If this happened, it could be huge.
Greg Shenaut