Subpoena Battle: What’s Next?

Earlier today, the White House made it official and asserted executive privilege with regard to former White House aides testifying before Congress about the U.S. attorney firings. What happens next?

Enter the experts.

I asked Jonathan Turley of George Washington University Law School and Marty Lederman of Georgetown Law to walk me through.

First, although the president has “directed” Sara Taylor, Karl Rove’s former aide, and Harriet Miers, the former White House counsel, not to testify, the decision is still up to them, both said. Although the traditional expectation is that aides will comply with determinations of executive privilege by the president, both could still refuse. It would be a “career ending move” to be sure, Turley added, but there is no legal impediment.

Taylor is still scheduled to testify before the Senate Judiciary Committee on Wednesday, and Chariman Patrick Leahy (D-VT) said yesterday that he expects her to show. You might call that an optimistic stance. Taylor’s lawyer Neil Eggleston has not said outright that she won’t testify. But he sent Leahy a letter on Sunday saying that the president would be asserting his privilege and that “absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee.” In other words, it sounds like Taylor will accede to the president’s assertion.

Even if Taylor decided to defy the president’s direction and testify, the White House would surely seek to bar her testimony in court through a restraining order, an injunction, or some other means, both experts agreed.

But if Taylor refuses to testify, then the ball’s in Congress’ court.

First, Senate Judiciary Committee Chairman Patrick Leahy (D-VT), whose committee issued the subpoena to Taylor, would have to seek a citation of contempt, first with a vote in committee, and then in the Senate. (House Judiciary Chair John Conyers said yesterday that he would not cite Taylor, but it’s not his call to make.)

From there, things become a lot less clear. As we’ve reported before, historically a citation of contempt has led to some sort of compromise agreement before the matter can get to court. But that seems increasingly unlikely to happen here, given the intractability of the two sides.

What happens next is anyone’s guess. Prof. Lederman gave an excellent rundown of the legal avenues available for Congress to enforce their subpoenas here. The short answer is that somehow, some way, the two parties will most likely end up in court, possibly even before any citations of contempt occur. No matter what, it’s extremely unlikely that anyone will go to jail — Taylor or Miers would remain free while the issue was litigated.

And once the battle goes to court, it will stay there for quite awhile. As Turley put it, “Fred Fielding may be relying more on the calendar than the Constitution in this controversy.”

Note: Miers is scheduled to testify before the House Judiciary Committee this Thursday. It’s unclear right now what her position is. Both committees also issued subpoenas last month to White House chief of staff Josh Bolten or the “appropriate custodian of records” for documents relevant to the investigation, raising the question of whether Congress would seek to hold Bolten in contempt if the White House continued to refuse to hand them over.