July 2007
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Day July 9, 2007

Congressional Subpoenas: Next Steps

OK, so the “showdown” between Congress and the White House isn’t exactly gunfight at the OK Corral. It’s going to play out in excruciatingly slow motion. And not even flying-through-the-air-two-guns-blazing John Woo slow motion. Real slow motion. The kind where we might forget it’s happening unless we pay attention.

Today, as expected, the White House “refused” to allow former political director Sara Taylor and former White House counsel Harriet Miers to testify under oath. As predicted, Fred Fielding and the White House obfuscated the issue, describing their efforts at “good faith” negotiation and talking up how they’d offered “private, off the record” interviews, much as they did in the earlier wrangle about testimony by Justice Department officials. And, in case we’d all forgotten, the same way they argued that Condoleeza Rice ought not to testify before the 9/11 Commission. This is a long-standing strategy to avoid testimony under oath, which everyone knows is the only way to compel the truth in cases where folks don’t necessarily want to tell the truth.

Interestingly, in this case, it seems like Sara Taylor doesn’t really mind testifying. She’s told the Senate committee that absent direction from the White House, she would testify without hesitation. So in the days ahead, it’ll be interesting to see how strongly she and her counsel weight the White House’s directive. They can’t prevent her, or Harriet Miers, from testifying, and naturally the Senate can bring to bear offers of immunity, not to mention contempt citations, to attempt to either entice or compel that testimony. Neither Conyers nor Leahy want to cite Taylor with contempt of Congress, but that may be the only way to resolve the situation, since it would immediately cause Taylor to file for declaratory relief and the issue of executive privilege would reach a Federal court fairly quickly.

Congress is far from being out of weapons in this particular controversy, and the White House has only two: the ability to “spin” this as baseless partisanship, and an apparently inexhaustible capacity to stonewall. The days ahead will see how those two assets stack up against the rule of law, Congressional authority, and the judicial system.