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This morning, Harriet Miers refused to appear after being subpoenaed by the House Judiciary Committee. I don't mean she refused to answer certain questions -- I mean she, through the White House, declared herself immune to subpoena, period.

This is -- yet again -- a remarkable situation. Harriet Miers isn't merely refusing to answer certain questions under the rubric of executive privilege, the White House is asserting that her very person is immune to constitutional oversight, and that thus she may ignore congressional subpoenas in their entirety.

That's an astonishing claim, if for no other reason than it is flatly, unambiguously, and laughably wrong. It's not even a debatable statement, but one of those now-regular White House quasilegal statements that mocks well-known and well-established laws to such an extent that no other conclusion can be reached but that the White House legal team is willfully setting out to break laws just to demonstrate that they can.

This is a very simple premise. A subpoena is never "optional". Whether you work in a McDonalds or in the White House legal department, if you are subpoenad by a body you are bound to appear. Once there, you may assert your rights, seeking the advice of counsel, refusing to incriminate yourself, or arguing that certain questions are privileged, but you may not assert that your entire presence is privileged by presidential decree. There is no such power -- it doesn't exist. When subpoenaed, you must respond. When asked to verify your name and are asked other basic questions, you must respond. Such questions are never -- never -- "protected" by executive privilege, and for Fred Fielding to claim that they are shows a contempt for the law -- and for Congress -- that is simply unprecedented even in this administration.

Harriet Miers' very existence is not something covered by presidential executive privilege. She may very well refuse to answer certain questions relating to White House conversations or advice, but it is absurd to claim that she, as a person, is immune to subpoena. No, strike that -- "absurd" is not the word. Contemptuous is the word.


This is astonishing. That this would have to be explained -- no, more than that, that this could even be argued -- is baffling. The only explanation is that the White House knows full well it is violating the law, and is counting on political actions by their own party to block prosecution of the transparent offense.

Harriet Miers, obviously, needs to be held in contempt of Congress. More to the point, since the Bush administration has indicated that the Department of Justice will as of now not enforce contempt charges brought by Congress, the House has no other option but to use its Constitutional powers of inherent contempt, and direct the Sergeant at Arms to enforce their subpoena by placing Miers in congressional custody.

Despite what others may say, this isn't a high stakes game. It isn't a "game" at all. The power of Congress to subpoena witnesses and have them appear is an absolute Constitutional power, and not one that can be ignored. It's high time for the White House legal team to understand where the boundaries of law are.

As for Fred Fielding, I heartily recommend to the Judiciary Committee that they subpoena him next, in order for him to explain to them why he believes "executive privilege" is so encompassing as to apply not just to certain types of testimony and documents, but that it extends to individuals themselves, based solely on presidential say-so.

Originally posted to Daily Kos on Thu Jul 12, 2007 at 12:49 PM PDT.

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