Yesterday the L.A. Times ran a story about the battle between Bush and Congress over the invocation of privilege by Harriet Miers. From start to finish, the piece is written in a way to make Bush’s invocation of privilege seem legally questionable and politically motivated. The story portrays this issue as a reprise of the U.S. Attorney controversy, with a principled U.S. Attorney pitted against a political administration.
Just one problem: the U.S. Attorney may agree with the Administration. And the Administration may be right.
Two! Two problems! (Nobody expects the Spanish Inquisition!)
The article is titled Another U.S. attorney in a tight spot, with a deck headline reading: “As lawmakers move to hold administration figures in contempt, Jeffrey Taylor would be the prosecutor — pitted against his bosses.”
Even before the reader begins the article, these headlines frame the contempt issue through the lens of the U.S. Attorney controversy: a principled U.S. Attorney battling it out with his politically motivated bosses. It’s interesting to see that Taylor would be “in a tight spot” and “pitted against his bosses” — given that we later learn that the paper has no idea how Taylor actually feels about the contempt proceedings.
But I’m getting ahead of myself, by jumping to the truth. For now, let’s stick with the L.A. Times narrative.
The article opens by continuing the theme of the headline, namely, that the current situation is a battle of wills reminiscent of the U.S. Attorney controversy:
For months, congressional investigators have been pursuing allegations that the Bush administration tried to influence cases handled by U.S. attorneys across the country in ways that would benefit the Republican Party.
Now that investigation is near an impasse because the administration appears to be telling a U.S. attorney what to do.
Oh, the irony!!
The strong implication there is that President Bush is telling a U.S. Attorney to do something wrong — improperly influencing him to make a legally questionable decision that he doesn’t want to make, in order to help the Republican party. The issue is characterized in this way throughout the article:
The position is roiling congressional investigators planning their next step in the probe, which has hit a wall with the White House’s refusal to turn over documents and make officials available for public questioning under oath.
It is also leaving Taylor, 42, facing a test of his own independence from his bosses at the Justice Department.
. . . .
Justice Department legal opinions, unless they are expressly disavowed, are considered official department policy. By holding this one up as good law, the department puts Taylor in a difficult spot.
Interesting. So Mr. Taylor feels differently from the Justice Department about the contempt issue? Uh . . . not necessarily:
Whether Taylor agrees with [the administration’s] view of the law is unclear; he declined a request for an interview.
So it’s a “test of . . . independence” of a guy in a “tight spot” who is “pitted against his bosses” — yet, for all we know, Taylor might completely agree with his bosses.
It’s very dramatic; I’ll give them that. It’s just not very, you know, reality-based.
Not only does the article falsely suggest a conflict, it also suggests that what the Justice Department is asking Taylor to do — not to prosecute the contempt citation — is legally wrong and politically motivated. After all, if he’s in a “tight spot” and facing a “test of his independence” then he must be receiving orders that are questionable, right?
Consider a hypothetical where a defendant performs a takeover bank robbery and shoots several customers, killing two. His face is caught on several security tapes and his guilt is unquestionable. The Justice Department instructs the local U.S. Attorney to seek the maximum possible sentence.
Does that constitute a “test of the U.S. Attorney’s independence”? Would it put the U.S. Attorney is a “difficult spot”? No, and nobody would ever think to put it that way. It’s clearly the right thing to do, and U.S. Attorneys must obey the Justice Department.
Suggesting that this is a “test of his independence” that “puts Taylor in a difficult spot” is a subtle suggestion that the Justice Department’s view of this issue is legally wrong, and politically motivated. The next suggestion, of course, is that if Taylor follows his orders, he will be doing so only out of loyalty:
Taylor is a loyal Republican who has served as a top lawyer for both Atty. Gen. Alberto R. Gonzales and former Atty. Gen. John Ashcroft.
So are the Justice Department orders to Taylor clearly illegal and wrong? Not according to Eugene Volokh. He notes that the Administration has cited a Reagan-era memo in support of its position, and opines that the memo is “generally quite correct.” Volokh concludes:
My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It’s just that the tool of forcing the Justice Department to prosecute is not a permissible one.
Now, Volokh’s view is not without controversy. The article quotes a professor who says that a special counsel ought to be appointed to take the case to a grand jury. Note that even he isn’t suggesting that this U.S. Attorney should be bringing contempt charges. (I am dialoguing with that professor now and will report back on his opinion tomorrow.)
So, it’s quite possible that the Justice Department’s actions vindicate the Constitution. The U.S. Attorney in question may entirely agree. Therefore, according to the L.A. Times, yet another U.S. Attorney finds himself in a “tight spot” and “pitted against his bosses.”
The narrative always trumps the truth. Every time.