A Matter of Political Survival

What’s the difference between testifying in private, with no oath, tapes or transcript, and answering the same questions in sworn, public testimony?

Or to put it another way ... if you’re willing to tell all in private, why make a federal case of doing it under oath in public?

If it’s a question of principle, what’s the principle?

It certainly isn’t about secrecy. In general, you might think that the reason to have private sessions is to keep things private. But in this context, nothing could be more absurd. If the president’s top political adviser and his former lawyer testify in front of a gaggle of politicians and their staffs, how long will it take before their remarks are reported on Drudge and summarized by Brit, attacked by the Democrats and respun at the White House? You can hold your breath. Near-instant coverage is what I’d predict.

The other obvious reason to do this the way the White House wants instead of the way Congress does is the one Scooter Libby could explain to you without much difficulty. You can’t be prosecuted for what you say when you’re not under oath.

It’s wrong to lie to Congress in an informal session, but it isn’t a crime. You can’t go to jail for it. Not so lying in sworn testimony. Testifying informally in private is not exactly a license to lie — there’s still a huge political cost in these circumstances to lying, if you get caught, and an enormous incentive for the press to try to catch you, precisely because you didn’t take the oath; but being embarrassed beats being indicted any day.

But I’m willing to give Karl Rove and Harriet Miers the benefit of the doubt. After all, Karl is an old friend of mine, and I was ready to see Harriet confirmed to be on the Supreme Court. And truth be told, whatever they said or did here, I don’t think they’re the ones whose judgment is really at issue.

A President’s top political adviser is allowed to see things politically. He’s allowed to push for his people to get political appointments, including as prosecutors, provided they’re qualified, which his deputy, who was ultimately appointed as interim U.S. attorney in Little Rock, plainly was.

The White House counsel, which is what Harriet Miers was, has only one client, the president; she’s allowed to view things through the narrow set of blinders shaped by her client’s interest in having loyalists serve him.

It’s the Justice Department that is supposed to serve as the buffer, to act as a limit on political pressure, to represent the interests of We, the People as well as Him, the President. Alberto Gonzales’ loyalty to the President may be the reason he still has his job, but it is also the reason his job is in trouble.

Public testimony is a much bigger story than private testimony, because you can show it. The better the hearings are as television, the bigger their impact. Imagine if Anita Hill had testified only in private.

A public show hurts President Bush, because Karl Rove and Harriet Miers are so closely identified with him. But it hurts Alberto Gonzales even more, because the more we hear about the pressure from the White House, the more likely we are to see the Justice Department’s actions as a response to it rather than as the independent exercise of substantive judgment that the job of Attorney General required.

In this sense, it’s not constitutional principle that hangs in the balance between public and private testimony, but the more pressing and partisan matter of the attorney general’s political survival, which is why you see the usual suspects lined up where they are on the question of how testimony should be taken.


Will Americans be sympathetic to a presidential candidate who is not at home with his wife as she battles incurable cancer?

Will they be willing to support a candidate when it means facing the likely death of the first lady during his term in office?

I am. I would.

Would you?

For me, the critical question is whether this is what she wants.

My bet is, it’s more important to her that he not give up than it is to him. After all, he’s likely to have more chances. This is hers.

Can you blame her for wanting to take it? So why blame him?

Click here to link to Susan's new book, "Soulless."

Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was previously Professor of Law at Harvard Law School and was the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System,” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.

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