The law, lawyers, and the court.

Rocking the Hard PlaceSara Taylor plays the Senate judiciary committee like a harp.

By Dahlia LithwickPosted Wednesday, July 11, 2007, at 7:58 PM ET

Sara TaylorIt's not that I don't want to feel sorry for Sara Taylor. I do. As she reminds us dozens of times today, she's been put in an impossible situation: caught between her desire to testify truthfully before Congress about the U.S. attorney purge, and President Bush's "direction" that she speak nothing of the U.S. attorneys, the deliberations about the U.S. attorneys, the external or internal conversations about the U.S. attorneys ...

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The problem I'm having in mustering any sympathy for poor Sara Taylor today is that she was no more "put" in this uncomfortable position than Kyle Sampson was "made" the "aggregator" of targeted U.S. attorneys. You can use the passive voice all you want, I suppose, but it doesn't change the fact that Taylor and now Harriet Miers have chosen to honor their former boss's absurdly broad assertion of executive privilege over a congressional subpoena. Loyalty to your boss is not a legal doctrine. Nor is trying to position yourself to get a good job someday in the future. By styling Taylor's political dilemma as a legal one, she gets the best of both worlds: She looks like a big giver, even as she's giving nothing away.

Related in Slate

Bruce Fein wants Dick Cheney out. Emily Yoffe explains executive privilege. Walter Dellinger and Christopher H. Schroeder solve the impasse between Congress and the executive branch. Chris Sullentrop reveals who gets a lying pass to Congress.

Pennsylvania Sen. Arlen Specter is the only Republican who shows up for today's proceeding—although Charles Grassley of Iowa puts in a brief cameo to tell us how cute little Sara was when she was 6. Specter is quick to remind Taylor that the prospect of a criminal contempt citation hangs heavily over her head. Just spitballing here, but if ever there was a week in which Ms. Taylor could probably feel pretty confident that Bush loyalists don't go to jail, I'd say this was that week.

Still. Specter appears to be daring the committee Democrats to put up or shut up: Either bring the threatened contempt charges against Taylor or accept White House counsel Fred Fielding's proffer of closed-door, unsworn, transcript-free chats with his clients in lieu of real testimony.

Sen. Patrick Leahy, D-Vt., actually gets Taylor to answer several of his questions about various e-mails with her name on them before she remembers that it's the president who in fact gets to decide what the law is. This comes up when Leahy asks where the 66,000 e-mails from her RNC e-mail account have gone, and she replies that her lawyer first sent them to the White House for vetting before she could comply with a congressional subpoena. When Leahy asks whether she has ever spoken to the president about U.S. attorneys, she invokes the "very clear" Fielding letter that instructs her not to testify. All morning she describes executive privilege in terms of the "Fielding letter." It's a rather strange construction and—since it's the sound bite she falls back on most today—an awkward way to describe executive privilege.

Specter opines that Taylor correctly asserted the Fielding privilege in response to Leahy's question about her conversations with the president. This makes it doubly strange later in the day when Taylor elects to answer that same question. (The president did not discuss the firings with her.) See? It's not just the senators fighting about the scope of this amorphous executive privilege; even the witness can't fix upon a clear rule. Taylor spends the morning huddling with her lawyer, Neil Eggleston, who in a most unlawyerly fashion urges her to disclose more, not less, ostensibly privileged information. The result is a session of bizarre push-me-pull-you testimony in which Taylor asserts this "privilege" that is not hers to assert, and then arguably waives that same "privilege" over and over again as she discusses in detail things that clearly fall within its vast scope.

At first this pattern of half-compliance with the subpoena just confuses the senators. Chuck Schumer, D-N.Y., huffs that "the fact that you are answering some questions but not others weakens the executive privilege claim even further. It shows how specious their claim is." But later, Ben Cardin, D-Md., and Leahy begin to observe that in fact Taylor's notion of the executive privilege seems to be that she can testify at length to exonerate friends at the White House, then clam up when she might implicate them. As Leahy growls toward the end of the day, "each time the finger points at you, you hide behind your oath to the president."

Freudian slip alert (or Stepford Wife alert): Early on in a colloquy with Sen. Sheldon Whitehouse, D-R.I., Taylor earnestly testifies: "I took an oath. And I take that oath to the president very seriously." Pat Leahy is not amused.

Actually, Whitehouse takes Taylor down a path that proves one of the most revealing of the day. He gets her to admit that she gave briefings on behalf of the White House at places like the EPA and that at these briefings she would routinely walk the agencies through "the political landscape" as part of a larger effort to "thank them for their service to the president." Taylor concedes that her political landscape included detailed still lifes of congressional races and that she would certainly name the candidates in question. But her landscapes were intended to "inform" as opposed to "direct" the agency folks in how to engage in their activities. (As was the case with those presidential signing statements, it's not the White House's fault when agencies confuse White House "information" with "instruction.")

Taylor's slippery definition of what comes under the Fielding doctrine and what doesn't is a migraine waiting to happen. Seemingly, love songs to the wonders of the ex-interim U.S. attorney from Arkansas, Tim Griffin, are not privileged (he was an "exceptionally well-qualified candidate"), but the origins of the plan to fire U.S. attorneys are off limits. Complaints about the ousted U.S attorney from New Mexico, David Iglesias, are not privileged, but the number of calls she received from people in political positions with complaints is privileged. Then it isn't. Composition of the White House Judicial Selection Committee? Privileged. Her opinion that there was "absolutely no wrongdoing done by anybody in the White House"? Not privileged.

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