Senate Republicans fire the big gun

There were so many reasons to withdraw the nomination of White House counsel Harriet Miers for the U.S. Supreme Court, it would be sadistic to list them and speculate about which one finally brought the nominee and the administration to the tipping point.

However, there is a very good possibility that President Bush told the truth in the statement he issued on the morning of Ms. Miers' withdrawal.

"It is clear," the president said, "that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel."

What does he mean?

He means the Senate Republicans were willing to use their subpoena power to force the White House to turn over documents.

The Washington Post quoted one GOP strategist who was working for Ms. Miers as saying that the day "things really went down" was the day Sen. Sam Brownback and Sen. Lindsey Graham joined Democrats in demanding that the administration produce documents that would give them the information they needed about Harriet Miers' work in the White House.

Senate Democrats are in the minority and do not have the power to issue subpoenas. But Republicans, in the majority, have the power to enlist the courts to enforce their requests for documents and testimony.

That raises another question. If President Bush has the right to prevent disclosures that would "undermine a president's ability to receive candid counsel," why doesn't he just take his case to court and fight it out?

Because he has no case. Because there is no such thing as executive privilege.

If you are interested in the details of constitutional history that prove this beyond all doubt, read Raoul Berger's 1974 book, Executive Privilege: A Constitutional Myth.

The short version is this: The Constitution gives the Congress the power to impeach the president, and implicit in the power to impeach is the power to inquire, and implicit in the power to inquire is the power to compel production of documents and testimony necessary for the Congress to carry out its constitutional powers.

All the executive departments under the president are creations of Congress, funded by Congress, and overseen by Congress. The president has no constitutional authority to withhold from Congress any information that it requests about anything that is going on in any of those departments, including the White House counsel's office.

President Richard Nixon and President Bill Clinton found this out the hard way, by going to court and trying to argue for a presidential privilege to withhold information.

It doesn't exist.

As in the case of the emperor's new clothes, many people who have to deal with the president on a host of other issues prefer not to call attention to this fact.

But the fact remains.

In the case of the Harriet Miers nomination, the Senate Republicans let it be known that they know.

The White House folded immediately.

Imagine what those confirmation hearings would have looked like. Imagine Harriet Miers refusing to answer questions about her work in the White House when pre-9/11 intelligence reports warned of al-Qaeda threats, when the case was made that Saddam Hussein had weapons that justified a U.S. invasion, when the discussion turned to the detention and torture of terror suspects, when White House aides were called before a grand jury investigating the leak of a CIA agent's identity.

Imagine the administration going to court and arguing that the elected representatives of the people of the United States have no right to see White House documents about any of it.

Imagine the administration losing the argument. Actually, that doesn't take much imagination.

By an odd coincidence, the Texas law firm with which Ms. Miers was formerly associated has just opened an office in Washington, D.C. The partners said they would like to take advantage of their contacts in government.

Congratulations in advance to Ms. Miers and best wishes to her on her future career as a lobbyist. Nobody should have to keep George W. Bush's secrets for a measly $166,000 a year.


Copyright 2005

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