Bye Bye Harriet Miers

Well, that didn't take long.

According to both CNN and the NY Times, Harriet Miers has withdrawn from her candidacy for Associate Justice of the Supreme Court.

The stated grounds, according to her resignation letter was that the Judiciary Committee had presented her with a choice: (a) release documents relating to her White House service or (b) be prepared to testify about her work.

She, of course, has refused. On the stated grounds of separation of powers and executive privilege.

That tells me that despite what I am sure was a stellar career as a corporate lawyer Ms. Miers spent diddly time studying the rules of privilege, legal or executive.


Executive privilege is an exemption granted to certain members of the executive branch having to testify about certain matters, if they choose not to. The limited parameters of the right of executive privilege were analyzed rather thoroughly in United States v. Nixon (you remember Tricky Dick!). The court confirmed that the right of executive privilege is indeed constitutional in nature, emanating from separation of powers even though never enumerated -- but the privilege is not absolute. So, a generalized assertion that information needs to be kept "confidential" is not enough to invoke the privilege. Instead, it was found in the Nixon case that when we're not talking about "state secrets", but instead merely "confidential executive deliberations" the executive privilege yields when there is a compelling national interest in disclosure of the information. While Dick Cheney currently has US v. Nixon under collateral attack in connection with his double-super-secret Energy Task Force - since Cheney has *not*, contrary to myth, invoked executive privilege - for now, Nixon remains the law of the land.

Because detailed information about her background, experience, qualifications and legal reasoning is central to evaluating her nomination, disclosure of information about Ms. Miers' work at the White House is indeed critical, and there is a compelling national interest for at least some level of disclosure.

Disclosure that, as we can see from her resignation letter and Bush's stonewalling for the past two weeks, this Administration has no intention of providing.

So if Harriet Miers, (former) contender for one of the most critical legal jobs in the country, doesn't understand why there is a compelling national interest in the disclosure of her work in the White House, she is clearly unqualified to do the job.

But there's another privilege at work here, which always applies to an attorney, licensed or no: the attorney-client privilege. It goes completely without mention in Miers resignation letter, even though it is a more theoretically solid privilege than executive privilege. I think that's not an accident.

Attorney-client privilege does not belong to the lawyer, even though the paramount duty is on us to assert it. Instead, the attorney-client privilege belongs to the client. In this case, to the extent that we are talking about legal advice that Ms. Miers did not wish disclosed, it was fully and utterly in Dubbya's power to say: "go ahead and talk."

He refused, obviously. Instead, he flip-flopped and accepted her resignation, having as recently as yesterday insisted that he would not withdraw her name.

And that says a lot about precisely how much information Ms. Miers may well have in her possession about a variety of subjects - everything from the Bush's TANG service to Abu Ghraib to lord knows what else. Information that Bush does not want disclosed, for whatever reason.

There will be a lot of spin about the meaning of today's resignation: whether it was intended to detract from what all presume to be coming indictments in the Plamegate Affair, whether it reflects the "last straw" diss of the Concerned Women of America after the National Review came out yesterday swinging about Miers' 1993 speech about judicial activism and separation of powers, which CWA and others freaked out about as code indicating Miers' potential support for Roe v. Wade; or whether it was simply that Bush wanted to avoid the public humiliation of what was rumored to be two GOP senators publicly coming out against the Miers nomination today. Who knows.

What we do know is that Ms. Miers, despite her low profile and rather secretarial demeanor (which I still am pissed at her about), is likely someone with a great deal of information in her possession that Bush is terrified of having see the light of day.