Saturday, March 1, 2008

Subpoenas No Longer Legally Binding?

It appears that subpoenas - the court order embodied by a piece of paper that requires one to show up at court and tell the truth under the threat of punishment (namely contempt of court) - have become legally obsolete, at least in Washington. Two staffers of George W. Bush have refused to comply with subpoenas from the House of Representatives regarding the infamous firings of eight U.S. prosecutors last year which led to Attorney General Alberto Gonzales' resignation. White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers refused to turn over documents and testify in the case, respectively, despite receiving congressional subpoenas to do so.

The case of the firings of the U.S. attorneys, of course, was highly contentious and controversial and raised many questions about the role that politics played in the pink slips. While the White House maintains that the firings occurred because of poor performance, Time magazine reports that all but two of the fired attorneys "had won outstanding evaluations for competence." So why the firings? It seems that some of the prosecutors had been leaned on by some republicans concerning politically-related crimes and the timing of their indictments. One of the attorneys who was fired was slated to be replaced by Timothy Griffin, a Karl Rove protege. It becomes harder to argue that these firings were not politically motivated as one reads more and more of the facts.

But that was all two years ago. This current story is about the fact that, under George W. Bush's orders, both Bolten and Miers ignored congressional subpoenas and now will face no consequence from the top law enforcer in the country - Attorney General Michael Mukasey. This is the definition of being above the law. To invoke executive privilege in a case like this is absurd. It is important to understand that the theory of executive privilege has no basis in the Constitution; there is no mention of it. (Michael Dorf, a Columbia Law professor, has a good, brief look at executive privilege in America on that link). So, essentially, it is an invented theory meant to create more autonomy of the executive branch from the legislative and judicial corners of government.

But let's pretend that this theory is legitimate for certain situations. Bolten's and Mier's situation simply does not seem like one of them. Michael Mukasey says that the contempt of Congress statute does not apply to executive branch officials who invoke executive privilege. I guess that begs the question: who does it apply to? Mukasey is setting a dangerous precedent, because now any executive official could do anything they want and claim executive privilege when asked to testify about their role in a situation. Madison is rolling over in his grave right now.

It's pretty clear that something about the firings of these attorneys was amiss. Gonzales resigned due to this scandal, the aforementioned lawyer slated to replace one of the fired attorneys (Karl Rove's protege) never did get that post because of the controversy surrounding it, and now Bolten and Miers are hiding behind claims of executive privilege. At the end of the day this case does not involve national security or anything that would jeopardize the American public if these documents and testimony become public. The only thing at stake here is the reputation of the Bush administration, which is apparently hiding something so damning that taking a public opinion hit by hiding this information is a better alternative than complying with the law. Peace.

Photos - Alberto Gonzales answering some questions (, Harriet Miers (, Joshua Bolten (, Michael Mukasey a little frustrated (

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