Dahlia Lithwick has compiled a top ten list of the Bush administration’s dumbest legal arguments of the year. I’d forgotten some of these wonders of spurious logic. For example, number 5 is a classic:
- Everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege.
This little gem of an argument was cooked up by the White House last July when the Senate judiciary committee sought the testimony of former White House political director Sara Taylor, as well as that of former White House counsel Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan ideological reasons. Taylor was subpoenaed in June and, according to her lawyers, she wanted to testify but was barred by White House counsel Fred Fielding’s judgment that the president could compel her to assert executive privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic over-reading of the privilege would both preclude congressional oversight of any sort and muzzle anyone who’d ever communicated with the president, regardless of their wish to talk.