The Scorched-Earth Subpoena Strategy
The decision by White House officials to take an extreme position on executive privilege -- we won't even offer to Congress the log of privileged communications, never mind the actual substance of those communications -- is simply and clearly designed to delay a court fight on the merits of the dispute. It could take months to resolve the matter of the log before the fight is ripe for a substantive ruling. Thus we have the spectacle of veteran White House lawyers acting like first-year litigation associates told by their senior partners and clients to scorch the earth in order to delay a case.
It's not hard to understand why the White House doesn't want to turn over the contents of the emails or allow its personnel, current or former, to testify. The Bush administration has been obsessive to the point of criminal in protecting and expanding the power and authority of the executive branch, and this fight happens to give it yet another reason to push for more. But surely the bright lawyers in the White House understand that their privilege claim here isn't bulletproof -- which is why they have come up with a bush-league (no pun intended) maneuver like refusing to turn over a privilege log. The move mocks Congress, the legal system and the integrity of the White House counsel's office.
It is routine practice in litigation involving claims of privilege -- attorney/client, doctor/patient, whatever -- for the party asserting the privilege to turn over a "log" that includes the names of the people, the date of the communication, the "Bates" stamped numbers on the documents in question, etc.
Yet White House counsel Fred F. Fielding says that Congress' request for a privilege log is "unreasonable" because the legislators asked for too much information. But there can't be a fair fight about a privilege if only one side knows what is being fought about. The first thing a judge will do in this case is order the White House to share with Congress some sort of viable log. And the White House probably figures that by the time that happens, a month or two or more from now, we'll all be that much closer to the end of the Bush administration. Tick tock. The clock is ticking.
Equally dismaying is Fielding's warning shot to former White House counsel Harriet Miers and former White House political director Sara Taylor, both of whom were told not to even think about talking to Congress, publicly or otherwise, despite the fact that many of emails apparently involve communications between the White House and people outside of the executive branch -- like people at the Republican National Committee. The broader the claim of executive privilege, goes the theory, the less likely it is to be upheld by the courts.
I have absolutely no pity for Miers or Taylor -- and neither should you. But here's how the Washington Post described her current dilemma: "Taylor's attorney, W. Neil Eggleston, said in a letter to Fielding and Senate Judiciary leaders over the weekend that Taylor is willing to testify but is unfairly being put in the middle of 'an unseemly tug of war.'"
Whatever. She could skew the dispute in favor of public candor by agreeing to testify before Congress, which would engender a great deal of fury from the White House but perhaps speed up a resolution of this mess. The White House then would have to go to court (as opposed to Congress) and seek quick action. No, I'm not predicting that. But a man can dream, can't he?
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