The Rest of the Story

A future History, wherein three Unrelated Tales turn out to be Related:

It's just a thought, but maybe there's something to it.  Some of you may recall that, a while back, President Bush nominated Harriet Miers to be an associate justice on the US Supreme Court.  She withdrew herself from consideration.  President Bush claimed that the the reason for the withdrawal was that the Senate demanded internal White House documents that were protected by executive privilege.  He was quoting from her letter to him, announcing the withdrawal.

Legal analysts pounced on this.  In an incisive essay, a professor of Law at UNC, Eric Muller, stated "The spin: she's withdrawing to protect executive privilege.  What a load of crap."  The rationale for the withdrawal was reported duly by various news outlets.  From MSNBC:

In her letter on Thursday to President George W. Bush, Harriet Miers wrote that she was withdrawing her Supreme Court nomination to protect the rights of the executive branch.

Mr Bush echoed that view, saying it was clear "that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House – disclosures that would undermine a president's ability to receive candid counsel".

Providing a bit more detail, another legal analysis was posted at Legal Ethics Forum:

During the run-up to the Roberts confirmation hearings, I put up a post concerning the application of the attorney-client privilege to lawyers working in the executive branch of government. The two leading cases both arise out of investigations of the Clinton administration by Independent Counsel Ken Starr — they are In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) and In re Grand Jury Subpoena, 112 F.3d 910 (8th Cir. 1997). In both cases the courts denied the claim of privilege, as against the Independent Counsel investigating allegations of criminal wrongdoing by executive branch officials. It is important for the analysis of these cases to keep in mind that they both involved possibly unlawful conduct. In both cases the courts reasoned that communications between an executive branch official and a government lawyer might be, prima facie, protected by the attorney-client privilege, but that the privacy interests underlying the privilege would be subordinated to other, weightier interests where a federal grand jury is considering allegations of wrongdoing under investigation by an Independent Counsel.

This would imply the Bush and Miers have nothing to worry about.  They can withhold the documents.  If it came down to a legal battle, the courts would agree that the documents are protected.  Unless, of course, there are serious allegations of criminal behavior, and the documents in question might have some probative value.  

In lieu of full access to the documents, the Senate indicated that it would accept a subset of documents, plus oral testimony:

But late Monday Senate Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., told reporters he was negotiating with White House officials to try to reach a compromise in which some documents would be given to the committee.

"We've not asked what advice she gave him. That's the privileged area; we've not asked for that," Specter said. He said that he'd asked the White House for a list of the subject areas that Miers worked on as counsel to the president. [...]

Specter repeated statements he has made before: "The whole confirmation process is in her hands. If she does well (in her public testimony) she will be confirmed. It's up to her as to how well she does."

OK, that's all on Miers...for a moment, anyway.  In seemingly unrelated news, Independent Counsel Patrick Fitzgerald indicted Scooter Libby.  Apparently, his investigation is ongoing, either via an extension to the term of the current Grand Jury, or the impaneling of a new one.  In yet other, seemingly unrelated news, Murray Was (HT: Dr. Forbush) revealed in an article in the National Journal:

Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources. [...] 

Now tie those three news items together: Alan Specter, speaking for the Senate, tells Miers she does not have to turn over all the documents, but does have to give public testimony about the topics covered in the documents.  There is legal precedent saying she does not have to turn them over, unless there is an Independent Counsel investigating possible wrongdoing.  But she withdraws anyway.  Then we learn that the guy who just got indicted, previously refused to turn over some documents, "overruling advice from some White House political staffers and lawyers."  

Imagine this alternate future: Miers does not withdraw.  She gives testimony about her White House experience, testimony that cannot be refuted because the documents are protected by executive privilege.  But then, the Independent Counsel gets the documents (on already has them) in the course of a criminal investigation.  Miers is confirmed and ascends to the Bench.  Then it comes to light that her public testimony is contradicted by the documents.  Suddenly, you have a Supreme Court Justice who is known to have committed perjury.  

That's a little far-fetched, but there are more plausible scenarios.  

Let's say Miers does not withdraw, she does give testimony, and does not perjure herself.  But in the course of the testimony, some upstart Senator recalls that Libby withheld documents, over the objections of White House counsel, and asks about that subject.  Did she give any advice regarding those documents?  Has she seen them?  Because the nomination is controversial, the testimony is televised.  Everyone is watching this, including Patrick Fitzgerald.  Fitzgerald decides he is curious about the matter, gets the documents, finds something bad, then Cheney goes down in flames too.  

I suppose one could come up with many possible scenarios here.  Regardless, I do wonder about this.  Bush and Miers claimed that her withdrawal was necessary to protect the principle of executive privilege.  That claim was widely regarded as a red herring.  But perhaps it was not.  Perhaps it was not so much about the principle of executive privilege, but a sudden realization that something they want to hide, may come under scrutiny.  It's just a thought, but maybe her withdrawal is a sign that the White House really does have something to hide.