Legal Implications of President's 'Direction' to Sara Taylor

Letter from the President’s counsel to Sara Taylor’s counsel:

“the President has decided to assert Executive Privilege with respect to the testimony sought from Ms. Taylor…[a]ccordingly, I respectfully request that you inform Ms. Taylor that the President has directed her not to provide this testimony.”

Without getting into the politics of it, or even the applicability of Executive Privilege to that which Taylor might possibly have firsthand knowledge of, what is the legal status of this ‘direction’? Is the recipient of this ‘direction’ legally compelled to obey it, even in the face of a Congressional subpoena? If not legally compelled to obey, does the recipient have the right and authority to decide whether to heed this ‘direction’ in the face of the subpoena? Or does the law simply require her to testify unless legally enjoined by the President?

Again, let’s obey forum directives, stay away from the surrounding politics (related GD thread here), and stick with the legalities.

I cannot find any legal authority that would compel Ms. Taylor to comply with the directive, or any legal basis for her criminal or civil liability if she fails to comply.

On the other hand, she risks a contempt of Congress citation if she does comply.

I cannot claim my research is exhaustive, and I welcome additional information.

IANAL, but as I understand it this is uncharted territory. During Watergate, they were getting to this point when Nixon resigned. Of course the congress could still investigate individuals, as they did back then, but the question of how far Presidential Privelege goes and can he require former aides to keep silent on previous events and communications. As it stands I believe that the issue will end up in court and be decided there. This, of course, presents it’s own set of problems and the consensus is that Bush will pursue some sort of compromise. Judging from his recent intractability, I wonder if he’ll do this.

I don’t see why he would. The final appeal to the Supreme Court will likely not be decided until after he leaves office, and he has demonstrated he doesn’t give a fig about his legacy.

In keeping with his Unitary Executive philosophy, it would be entirely appropriate for him to invoke Executive Privilege even if everything in this matter were above board, one should note.

I really don’t think the argument is w/ the basic concept of executive privilege, but rather w/ the parameters and abuse of it’s implementation. I do think it’s entirely possible that Bush thinks the Roberts court will sustain his position and I have my doubts of that happening.

Not to be a junior mod, but I’m very interested in this subject and would like to see it stay here in GQ. It seems to me that the discussion should be confined to what the President, generally, and Congress, generally, can or might do. Questions about what Bush specifically or this Congress specifically might do are inherently political, and risk transfer of the thread to GD, where the very interesting core question would be disappear into a swamp of the usual bickering. Speaking for myself, I’d be disappointed if that were to happen, so I’d like to see the discussion confined strictly to the question of what the Executive and Congress are legally empowered to do, solely as Constitutional bodies, and not expand into the specific politicos involved in the current brouhaha. Pretty please?

From the latest AP Release on the subject (may be updated during the day):

Taylor, who left the White House eight weeks ago for reasons she said were unrelated to the firings, was treading a rough line between obeying Bush’s order not to reveal internal White House deliberations and responding to a congressional subpoena compelling her to do so. Her lawyer, Neil Eggleston, sat at the witness table to advise her.

“I’m trying to be consistent and perhaps have not done a great job of that,” Taylor said. “I have tried.”

The committee’s ranking Republican, Sen. Arlen Specter, said that may not be enough to protect her from a contempt citation for failing to answer many of the committee’s questions.

“There’s no way you can come out a winner,” said Specter, R-Pa. “You might have been on safer legal ground if you’d said absolutely nothing.”

As for the prospects of pursuing a criminal citation for contempt of Congress, Leahy said only, “That’s a decision yet to be made.”

I think she’s in a very dangerous position because courts tend to hold that you cannot use a privilege (to the extent that executive privilege is valid) as both a sword and a shield. In other words, you cannot testify just about points helpful to your position while claiming everything else is privileged. She is at risk of being held in contempt because by testifying at all in the area, she may be held to have waived whatever privilege exists.

In general litigation, a party who partially waives its privilege as to some testimony can be held to have waived its privilege to all related testimony, and be compelled to testify about everything related.

This, of course, brings up both the question of who holds executive privilege (to the extent it exists, of course).

In the corporate context, if a laywer has a privileged communications with a corporate officer about corporate business, the privilige is held by the corporation, not the officer. If the officer leaves the corporation, the corporation continues to hold the privilige and may object to the former officer’s testimony about the privileged communications. If the former officer decides to voluntarily reveal the privileged communication (waiving a privilege it is not the former officer’s to waive), a court may still hold the communication privileged and bar the communication from evidence (though the court cannot erase it from the minds of the other parties). The former officer might also be subject to damages for revealing trade secrets, or an injunction prohibiting revealing them further.

If this reasoning holds (and executive privilige is valid), I don’t see why the White House cannot assert the privilege on behalf of a former employee. As such, I don’t see that Ms. Taylor’s actions would be considered a waiver on behalf of the White House, which might be some protection to her in a contempt action.

If she (as she professes) genuinely wants to testify, however, like Bricker I don’t know of any authority that would require her to comply with the White House directive. Assuming she is not asked about things legally secret/classified or otherwise formally protected from public disclosure, I would believe she has a First Amendment right to testify freely about government functioning (though I don’t know of any authority in this regard).

In discussing this around the office, one of the lawyers here told about a case he had where a former state government official gave him a statement about questionable actions that took place before he resigned his office (in part because he didn’t want to be involved in the shady dealings). Though the other side screamed and yelled, he was held not to be subject to privilege as he was not represented by any of the law firms involved in the litigation (and indeed had formally waived legal representation before my colleague took his statement). There was, however, no claim of state government executive privilege or other legal restriction to his voluntarily giving a statement.

As to the other questions that this issue suggests, the scope of the privilige or whether Congress will try to invoke its contempt power, I don’t see how much can be said without bringing this into GD territory (and upseting Cervaise).

Couldn’t she be forced to testify about classified material if the committee holds a closed door session?

And now Harriet Miers has said that in response to a similar direction, she won’t even show up at tomorrow’s hearing on the House side. Conyers feels the law requires her, at a minimum, to appear and claim the applicability of the privilege in person.

One TPM reader whose general legal smarts Josh is willing to vouch for says:

To me, that seems quite a stretch, claiming that Bush’s directing Miers not to show up is felonious. But I’m way out of my league here, and I’d be interested in what the SDMB legal eagles’ opinion is of this, as well as of the consequences for Miers of not appearing at all.

Cervaise, while I too want to keep this GQ thread from turning into a political debate, IMHO it’s too much trouble to work around using the names of the actual players in this drama. I think that if anyone’s comments start nudging towards GD territory, we point out the OP’s link to the GD thread that covers the part of the discussion that doesn’t have factual answers.

It sounds to me like the White House is double-dog daring Congress to cross a line in the schoolyard sand. First Blondie McPoutylips refuses to testify, then they raise the ante by telling Harriett Miers to blow off the subpoena altogether. Look for them to dip Nancy Pelosi’s pigtails in the inkwell and stuff Harry Reid into a locker before the summer is out.

Factual answers? The best you can hope for is a wide variety of legal opinions. Then what should we do, sit on our hands because we can’t debate the merits of each in this forum? There are no factual answers.

I’ll let the mods decide when a debate over what the law is, has slid into a political debate.

At any rate, DOJ has upped the ante:

Holy cow.

I guess that’ll provide sufficient legal cover for Miers to skip today’s hearing. But when the opinion becomes available, I’ll be interested in legal Dopers’ opinion of the opinion.

Which would look cool, framed, on her wall. Seriously, wouldn’t an attorney have to consider how her action would help/hurt her future career?