House Democrats say they want White House immigration adviser Stephen Miller to testify about a plan to release illegal immigrants into sanctuary cities. The plan reportedly has been discussed, but only as one option. It has not been implemented.
Getting Miller to testify before a congressional committee is a non-starter. Officials appointed by the president testify before Congress. Aides don’t.
Thus, as the Washington Post acknowledges, two aides to former president Obama refused to testify when House Republicans sought their appearance. One was David Simas from whom GOP members wanted information about White House political activity. The other was Ben Rhodes, a top foreign policy adviser. Neither appeared before Congress.
The Obama White House cited executive privilege, as Trump no doubt will do if the Democrats insist on taking testimony from Miller. The basis for the privilege is the need for aides to talk freely to the president about policy. Presidents have a legitimate need for a candid back-and-forth with their advisers. Without the privilege, aides might well be inhibited from providing it.
But Miller would have an additional reason for declining to testify — the fact that the policy Democrats want to interrogate him about hasn’t been implemented, only discussed. Thus, there is no legitimate oversight justification for quizzing Miller. Congress oversees the actual implementation of its laws, not internal White House discussions about various options for implementing them.
Here, then, there is no tension between the president’s need for the free flow of advice and Congress’ need to oversee executive action. The action Democrats want Miller to testify about has not occurred. There is nothing to oversee.
Even if there were, Trump should still assert executive privilege, just as Obama asserted did. Since there isn’t, the Democrats call for Miller to testify about sending illegal immigrants to sanctuary cities is absurd.