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Legal expert 'baffled' why White House would invoke executive privilege in Tillman case
David Edwards and Muriel Kane
Published: Monday July 16, 2007
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Keith Olbermann reported Monday that the administration is facing two deadlines where the House of Representatives has called for officials to testify and the administration is invoking executive privilege. One has to do with the death in Afghanistan of former football star Pat Tillman, which the Pentagon used for propaganda purposes instead of acknowledging it was the result of friendly fire. The other involves a subpoena to White House Counsel Harriet Miers over the US Attorney firings that Miers has refused to honor.

Constitutional law professor Jonathan Turley joined Olbermann, who began by asking him about "inherent contempt," an old-fashioned process that the House might use to prosecute Miers directly, instead of waiting on the US Attorney for Washington, DC to bring charges. Turley explained that 200 years ago, Congress used to routinely try people and that the sergeant-at-arms had men and weapons at his disposal to bring people in. The practice lapsed because it became a nuisance and has not been used for 70 years, but it remains available.

Turley went on to say that he was bewildered by the White House's willingness to involve itself in such a clearcut case of contempt. "The most straightforward act of contempt is not showing up," he said of Miers. "I'm not too sure why the White House did that. It was, in my view, a rather silly thing and dangerous thing to do. She could have shown up and still invoked privilege, but instead she didn't show up, and there are plenty of questions that might have been asked of her which did not involve privilege."

"Usually presidents will cooperate," Turley said in dismay. "The Tillman case is a great example of that. It's unbelievably weak as an assertion, but the White House seems to be invoking executive privilege if anyone is within a 25 mile radius of the building. It's as clever and as elegant as a meat cleaver. ... Past presidents have compromised. On something like Tillman? I don't think past presidents would have said, 'Let's fight this one out.'"

"This is really coming out of Vice President Cheney's shop," Turley concluded. "Past presidents have issued conditional waivers. They've said, 'Look, we're invoking executive privilege but we're going to waive it in this circumstance because we think the public has a right to know.' ... What occurred to Tillman truly shocks the conscience. ... Why anyone in the White House would stand on executive privilege ... it baffles the mind."

The following video is from MSNBC's Countdown, broadcast on July 16.