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Rocking the Hard PlaceSara Taylor plays the Senate judiciary committee like a harp.

By Dahlia Lithwick
Posted Wednesday, July 11, 2007, at 7:58 PM ET

(Continued from page 1)

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.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Sara Taylor by Mandel Ngan/Agence France-Presse/Getty Images. Photograph of the White House on the Slate home page by Medioimages/Photodisc.
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Remarks from the Fray:

I really don't get Dahlia. Her observations about Taylor's bumbling testimony, rife with contradictions about the very notion of executive privilege, is right on.

Anyone who watched even small excerpts of the testimony could easily conclude, as Sheldon Whitehouse did, that this entire claim of executive privilege is "ludicrous and extreme."

The complete and total failure of the mainstream media to press this point further is one thing. For Dahlia to conclude, after an otherwise fine article, though, that "[t]he real truth is that Democrats would have been on safer political ground if they'd asked absolutely nothing," is another.

I am completely baffled. Senate Democrats completely obliterated the flimsy claim of executive privilege, yet Dahlia concludes that this was politically unwise.

We have "Taylor the clam," as the Washington Post called her, pledging fealty to the President rather than the rule of law, yet we are told it is the Democrats that come out looking like the losers.

And if Harriet Miers delivers on her promise and skips her legally mandated testimony this morning, we have a clear case of the President of the United States ordering someone to break the law.

The American public are not as dumb, as you seem to think Dahlia. Even the most ardent Bush supporter cannot deny it is the Executive that is floundering in an attempt to stonewall. The political points the Democrats are losing are from their own supporters that do not believe they are being aggressive enough. We want them to take the damn gloves off and demonstrate to this President and his supporters they are not above the law. A Contempt of Congress charge against Miers (if she fails to appear) will be a nice start. Continuing to shred these "ludicrous and extreme" claims is another!

--spruce

(To reply, click here.)

When are Leahy and Schumer gonna' get some balls? Minuet time is over folks. Time to start handing out contempt citations. Had Leahy been willing to play the same hardball as Bush and Rove are playing, he would have had the Sgt At Arms ready and waiting after Taylor arrived. And the moment she invoked executive privilege, he should have had the SAA hold her while the committee voted to cite her in contempt with her present.

Then Leahy should have turned to her and given her one more chance. Failing that, order the SAA to send her off in custody of the US Marshals. Let her think about it and let the WH go to court to have the Exec Privilege heard. That would get the WH to expedite the matter, something Congress would want to see. After all, the last thing this WH wants is to have a situation where every time one of their clowns shows up on the Hill, they end up in jail.

--degsme

(To reply, click here.)

The short answer to why she hasn't been charged with anything yet is that no one is ever immediately charged with anything. Charging a federal crime takes time, and there are a couple special steps to bring this charge. Contempt of Congress is a misdemeanor defined in 2 U.S.C. sec. 192. Section 194 provides that if a statement of the fact that someone failed to appear or failed to answer questions is filed with the Speaker of the House or the President of the Senate, that official is then required to certify the statement to the relevant U.S. Attorney (in this case, Jeffrey Taylor, the U.S. Attorney for the District of Columbia), who is then required to bring the matter before a grand jury for investigation.

It is true that Congress could use the "inherent contempt" procedure, in which case the trial occurs on the chamber floor, but [it] hasn't done so since 1934. (Would you really prefer a trial on the Senate floor, presided over by the VP?) The statutory method, established in 1857, is preferred. Also, the Supreme Court held that the punishment under the inherent contempt procedure could not extend past the session of Congress concerned.

--Kit-Kat

(To reply, click here.)

(7/12)

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