The Limits of Executive Privilege

Yesterday, former Bush regime counsel Harriet Miers failed to appear before before the House Judiciary Committee in violation of a congressional subpeona, apparently because she was ordered not to appear by the president as an assertion of executive privilege. Now, as I have noted in the past, executive privilege is a really screwy thing, not really being actually granted to the president in the Constitution, and what it actually entails and what is covered have never been fully delineated.

Nonetheless, under even very liberal interpretations of what executive privilege covers, I don't see any way it can be construed to mean, as the Bush regime contends, that it can be used to immunize staffers from contempt of Congress charges for failing to appear. The president can probably invoke privilege to keep his aides from answering certain questions, but how can a staffer simply showing up at a congressional committee hearing possibly violate executive privilege? Clearly, it can't.

And, just like with the Fifth Amendment right not to incriminate one's self, one can only invoke executive privilege in response to a question asking for information that is privileged. You can't refuse to come to court or appear before Congress just because you're afraid they might ask questions that you would have the right to refuse to answer. You have to show up and be asked such a question and then invoke your right to refuse to answer. You can't invoke a right in the absence of a threat to that right, and simply responding to a congressional subpeona is not, in and of itself, a threat to either Fifth Amendment or executive privilege rights.

Also, if the Bush regime's arguments were upheld, then Congress' oversight responsibilities as outlined in the Constitution would be completely impossible for Congress to fulfill. If the White House can immunize any of its staff from having to appear before Congress, then Congress can't possibly ever get information about wrongdoing in the White House. The president would simply never let anyone testify in front of Congress, which is clearly not within the president's powers, executive privilege or no.