Rocking the Hard Place

Rocking the Hard Place

Rocking the Hard Place

The law, lawyers, and the court.
July 11 2007 7:58 PM

Rocking the Hard Place

Sara Taylor plays the Senate judiciary committee like a harp.

Sara Taylor. Click image to expand.
Sara Taylor

It's not that I don't want to feel sorry for Sara Taylor. I do. As she reminds us dozens of times today, she's been put in an impossible situation: caught between her desire to testify truthfully before Congress about the U.S. attorney purge, and President Bush's "direction" that she speak nothing of the U.S. attorneys, the deliberations about the U.S. attorneys, the external or internal conversations about the U.S. attorneys ...

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The problem I'm having in mustering any sympathy for poor Sara Taylor today is that she was no more "put" in this uncomfortable position than Kyle Sampson was "made" the "aggregator" of targeted U.S. attorneys. You can use the passive voice all you want, I suppose, but it doesn't change the fact that Taylor and now Harriet Miers have chosen to honor their former boss's absurdly broad assertion of executive privilege over a congressional subpoena. Loyalty to your boss is not a legal doctrine. Nor is trying to position yourself to get a good job someday in the future. By styling Taylor's political dilemma as a legal one, she gets the best of both worlds: She looks like a big giver, even as she's giving nothing away.

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Pennsylvania Sen. Arlen Specter is the only Republican who shows up for today's proceeding—although Charles Grassley of Iowa puts in a brief cameo to tell us how cute little Sara was when she was 6. Specter is quick to remind Taylor that the prospect of a criminal contempt citation hangs heavily over her head. Just spitballing here, but if ever there was a week in which Ms. Taylor could probably feel pretty confident that Bush loyalists don't go to jail, I'd say this was that week.

Still. Specter appears to be daring the committee Democrats to put up or shut up: Either bring the threatened contempt charges against Taylor or accept White House counsel Fred Fielding's proffer of closed-door, unsworn, transcript-free chats with his clients in lieu of real testimony.

Sen. Patrick Leahy, D-Vt., actually gets Taylor to answer several of his questions about various e-mails with her name on them before she remembers that it's the president who in fact gets to decide what the law is. This comes up when Leahy asks where the 66,000 e-mails from her RNC e-mail account have gone, and she replies that her lawyer first sent them to the White House for vetting before she could comply with a congressional subpoena. When Leahy asks whether she has ever spoken to the president about U.S. attorneys, she invokes the "very clear" Fielding letter that instructs her not to testify. All morning she describes executive privilege in terms of the "Fielding letter." It's a rather strange construction and—since it's the sound bite she falls back on most today—an awkward way to describe executive privilege.

Specter opines that Taylor correctly asserted the Fielding privilege in response to Leahy's question about her conversations with the president. This makes it doubly strange later in the day when Taylor elects to answer that same question. (The president did not discuss the firings with her.) See? It's not just the senators fighting about the scope of this amorphous executive privilege; even the witness can't fix upon a clear rule. Taylor spends the morning huddling with her lawyer, Neil Eggleston, who in a most unlawyerly fashion urges her to disclose more, not less, ostensibly privileged information. The result is a session of bizarre push-me-pull-you testimony in which Taylor asserts this "privilege" that is not hers to assert, and then arguably waives that same "privilege" over and over again as she discusses in detail things that clearly fall within its vast scope.

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At first this pattern of half-compliance with the subpoena just confuses the senators. Chuck Schumer, D-N.Y., huffs that "the fact that you are answering some questions but not others weakens the executive privilege claim even further. It shows how specious their claim is." But later, Ben Cardin, D-Md., and Leahy begin to observe that in fact Taylor's notion of the executive privilege seems to be that she can testify at length to exonerate friends at the White House, then clam up when she might implicate them. As Leahy growls toward the end of the day, "each time the finger points at you, you hide behind your oath to the president."

Freudian slip alert (or Stepford Wife alert): Early on in a colloquy with Sen. Sheldon Whitehouse, D-R.I., Taylor earnestly testifies: "I took an oath. And I take that oath to the president very seriously." Pat Leahy is not amused.

Actually, Whitehouse takes Taylor down a path that proves one of the most revealing of the day. He gets her to admit that she gave briefings on behalf of the White House at places like the EPA and that at these briefings she would routinely walk the agencies through "the political landscape" as part of a larger effort to "thank them for their service to the president." Taylor concedes that her political landscape included detailed still lifes of congressional races and that she would certainly name the candidates in question. But her landscapes were intended to "inform" as opposed to "direct" the agency folks in how to engage in their activities. (As was the case with those presidential signing statements, it's not the White House's fault when agencies confuse White House "information" with "instruction.")

Taylor's slippery definition of what comes under the Fielding doctrine and what doesn't is a migraine waiting to happen. Seemingly, love songs to the wonders of the ex-interim U.S. attorney from Arkansas, Tim Griffin, are not privileged (he was an "exceptionally well-qualified candidate"), but the origins of the plan to fire U.S. attorneys are off limits. Complaints about the ousted U.S attorney from New Mexico, David Iglesias, are not privileged, but the number of calls she received from people in political positions with complaints is privileged. Then it isn't. Composition of the White House Judicial Selection Committee? Privileged. Her opinion that there was "absolutely no wrongdoing done by anybody in the White House"? Not privileged.

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Often after protracted bickering over whether and why something she claims to be privileged can actually be privileged, Taylor agrees to waive the privilege only to testify, "I can't recall." She tells Cardin she can't even remember what she had for breakfast. This would be funny, Cardin observes, but "I would assume what you had for breakfast last week was not a subject of intense national attention."

Hewing to the party line throughout, Taylor characterizes the whole U.S. attorney purge as the result of poor "communication."  She sighs that "had there been better communication, we could have avoided this whole situation," assuring Sen. Whitehouse that the Clinton administration did precisely the same thing in firing all of its U.S. attorneys at the start of that administration, but "they were much more artful."

Whitehouse finally becomes frustrated with Taylor's selective invocation of the privilege when she refuses to explain to him what she meant in an e-mail describing the ousted U.S. attorney from Arkansas, Bud Cummins, as "lazy." Whitehouse says that refusing to discuss a publicly released e-mail, unprotected under any possible theory of executive privilege, is representative of the "unbelievably preposterous situation" you've been put in.

But Whitehouse is wrong on one point. The committee doesn't refuse to discuss all these matters with Taylor. They discuss them for three long hours. And even though the discussions are largely confined to arguments about what is and what is not privileged, the fact is that the country has now seen Taylor—as she continues to assure the committee—trying her best to be helpful, which is going to make a contempt citation next to impossible.

The Democrats should never have taken this deal. It's the functional equivalent of off-the-record, unsworn, behind-closed-doors testimony—in that the witness appears to be cooperating even when she gives them nothing at all. There is absolutely nothing to be done with Taylor's numerous very helpful nonanswers today. Specter mournfully tells her at the end of the hearing that her helpfulness will come back to haunt her: "You might have been on safer legal ground if you'd said absolutely nothing."

Pooh. The real truth is that Democrats would have been on safer political ground if they'd asked absolutely nothing.