Harriet Miers says no

White House counsel Harriet Miers announced her resignation today. Presidential spokesman Tony Snow was asked at his daily briefing why she was leaving. "Basically, she has been here six years," he answered.

How charmingly opaque. He must wow the ladies at cocktail parties.

The White House counsel heads a team of lawyers who advise the president on legal matters. You might remember that President Bush nominated Harriet Miers to the U.S. Supreme Court, then withdrew her nomination after Senate Republicans refused to back down from their demand for documents related to Ms. Miers' work in the White House.

As White House counsel, Harriet Miers was at the president's side when intelligence reports warned of al-Qaeda threats before 9/11. She was there when the president decided that pre-war intelligence justified an invasion of Iraq. She was there when the administration formulated its policies for imprisoning and interrogating terror suspects. She was there when special prosecutor Patrick Fitzgerald started asking top officials about the leak of a CIA agent's identity.

As soon as it became clear that Senate Republicans were ready to use their subpoena power to compel the White House to answer their questions about Ms. Miers' work, President Bush decided to nominate somebody else.

The president contended that the information sought by the senators was protected by executive privilege, but he stopped short of going to court and fighting it out. That was a wise decision, because there actually is no such thing as executive privilege when the United States Congress demands information from the executive branch. (See the October 2005 post, "Senate Republicans Fire the Big Gun.")

Perhaps it is a coincidence, but on the very day that Democrats in the House and Senate acquired subpoena power, White House counsel Harriet Miers resigned.

Is it possible that the president asked her to destroy or hide documents and she refused to do it?

Is it possible that the president asked her to lead an administration-wide effort to defy congressional subpoenas? Did he ask her to craft a doctrine of national security privilege or executive privilege that would allow the Bush administration to keep its secrets forever?

Did she refuse?

We'll probably never know, although we'll get a good idea when the president names her replacement. Watch for someone with a long history of unquestioned loyalty to the president, perhaps someone with a skeleton or two in his closet to keep him from judging anybody else. Watch for someone old enough to look really pitiful if anyone suggests a prison term for contempt of Congress.

On the other hand, if the president names a lawyer with a reputation for independence and integrity, someone with a history of working with both Democrats and Republicans, it would be an indication that Harriet Miers' resignation had nothing to do with resisting congressional subpoenas.

Place your bets.


Copyright 2007

Editor's note: You might be interested to read the 1974 book, Executive Privilege: A Constitutional Myth, by the late Harvard law professor and legal historian Raoul Berger.

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