226. The White House declares that Harriet Miers doesn’t have to answer a subpoena based on a legal opinion by a lawyer who legally should no longer be in his post
The DOJ’s Office of Legal Counsel (OLC) issued a memorandum of July 10, 2007 declaring that Harriet Miers had been absolutely immunized by the White House from responding to a subpoena to appear and testify before the Senate Judiciary Committee. The basis of the opinion goes to the sloppy and disdainful way in which the Bush Administration responds to legal challenges. The Attorney General delegates authority to the Assistant Attorney General of the OLC to issue these kinds of opinions to agencies within the Executive branch. The Assistant Attorney General (AAG) of the OLC may in turn delegate this authority but must supervise the delegated work. As it is, Gonzales has recused himself from matters pertaining to the US Attorney firings. So the opinion should have been given by the AAG of the OLC, but here’s the catch.
The opinion was signed by Steven Bradbury. Bradbury was made acting AAG and nominated twice to be made permanent AAG. However, the Senate returned his nomination to the President more than 210 days before the issuance of the memo. (They did so by the way because of Bradbury’s role in justifying the NSA warrantless wiretapping program. The quashed OPR probe mentioned in item 92 also involved possible wrongdoing by Bradbury and the OLC.)
Pursuant to Title5 of the US Code 3346(b)(2)(B): "if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve . . . for no more than 210 days after the second nomination is rejected, withdrawn, or returned." So Bradbury was no longer acting AAG of the OLC and had no authority to issue the opinion. What this means is that the White House has asserted a vast and absolute Executive privilege based on a legal rationale that has as much legal force as if you, me, or your neighbor’s dog had written it. Bradbury was nominated on June 23, 2005 and again on January 25, 2006. He was nominated a third time on January 9, 2007 and again on January 23, 2008. It is the nomination that will not die.