Why Isn't Harriet Miers in Jail?
The theory behind executive privilege is the President exerts it or an employee cites it so the President can receive untrammeled advice—so that people can give their opinions while serving the President unconcerned with sharing that opinion with anyone else.
The key phrase there is while serving the President. No one has ever suggested that it protects former employees of the White House from testifying, and, indeed, this White House has yet to explain how ex-employees refusing to testify can possibly apply to the most expansive view of executive privilege. But beyond this, Harriet Miers said she didn’t appear before Congress because the President ordered her not to. First, she doesn’t work for the President. He simply can’t give her an order. It’s like saying she blew off Congress because George Steinbrenner ordered her, and while being the owner of the Yankees is important, it gives you no more right to give orders to random citizens than being the President does. Second, to assert executive privilege, she would have had to show up to the hearing. She didn’t. Otherwise—that is, now—she is guilty of contempt of Congress.
So why isn’t Harriet Miers in jail? And awaiting trial for contempt of Congress, for which they have an open-and-shut case? She ought to be studying up for her role in a future Girls Behind Bars film.
