Miers Does Not Appear

July 12, 2007
Blog
As noted yesterday, after agreeing to appear before the Judiciary Committee, former White House Counsel Harriet Miers' attorney informed the Committee that under direction from the White House she would not honor the subpoena requiring her appearance. Chairman Conyers and Subcommittee Chairwoman Linda Sánchez responded to Miers' attorney:

A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.

The hearing has just begun, and Miers has not appeared. It can be viewed on C Span 3 or via Committee webcast.

Subcommittee Chairwoman Linda Sánchez gives opening remarks:

Chairwoman Sánchez:

"I am extremely disappointed and deeply concerned that former White House counsel Harriet Miers has apparently chosen to forgo this opportunity to give her account of the firing of the US Attorneys and the potential politicization of the US Department of Justice. Through extensive interviews and review of documents, it appears clear that Ms. Miers played a significant role in the decision to fire at least 9 US Attorneys."

Full Committee Chairman John Conyers gives opening remarks:

Chairman Conyers:

"This would have been the very first White House witness to show up, even though she's an ex White House witness. I'm just wondering if the White House can call a former employee and them not to show up. It seems to me that we're proceeding under as reasonable and modest an approach as we can possibly make."

Subcommittee Chairwoman Linda Sánchez details what she views as problems with the White House's claim of Executive Privilege in ruling on Harriet Miers' failure to appear:

Chairwoman Sánchez:

"We were not expecting Ms. Miers to reveal any communication to or from the President himself, which is the most commonly recognized scope of the Presidential communications privilege. In fact, as recently as June 28th, a senior White House official at an authorized background briefing specifically stated that the President had no personal involvement in receiving advice about the firing of the U.S. attorneys, or in approving or adjusting the list. Ms. Taylor testified yesterday that she was not aware of any personal involvement by the President."

Full transcript of Chairwoman Sánchez on her ruling in extended entry:

Chairwoman Sánchez: Ms. Miers has evidently, as her counsel indicated in his recent letters, failed to appear today to answer questions and to produce relevant documents in accordance with her obligations under the subpoena served to her on June 13th. If she does appear, we will resume our hearing as intended. But the last word we have from her counsel is that she will not, and indeed, she is not present here. So we will proceed now, on that basis.

According to letters that we have received from her counsel, her refusal is based on letters she has received from current White House counsel Fred Fielding, asserting related claims of executive privilege and immunity. Many of these claims have already been raised and communicated to us previously. We have given all these claims careful consideration, and the Chair is prepared to rule that those claims are not legally valid and that Miss Miers is required, pursuant to the subpoena, to be here now and to produce documents and answer questions.

After I rule, I will entertain a motion to sustain this ruling, but first I would like to set forth the grounds for it. They are as follows:

First, the claims of privilege and immunity are not properly asserted. Ms. Miers is no longer an employee of the White House and is simply relying on a claim of presidential executive privilege and immunity communicated by the current White House counsel. No one here is here today on behalf of the White House raising that claim.

In previous cases, when a private party such as Ms. Miers has been subpoenaed, and the executive branch has objected on privilege grounds, the private party has respected the subpoena, and the executive branch has been obliged to go to court to seek to prevent compliance with the subpoena. We have not even received a statement from the President himself asserting privilege, even though Chairman Conyers has asked for one. The courts have stated that a personal assertion of executive privilege by the President is legally required for the privilege claim to be valid. For instance, the Schultz case stated that even a statement from a White House counsel that he is authorized to invoke executive privilege is "wholly insufficient to activate a formal claim of executive privilege" and that such a claim must be made by the President as head of the agency, the White House.

Second, we are aware of absolutely no possible proper basis for Ms. Miers refusing even to appear today, as required by the subpoena. The White House counsel's letter to Ms. Miers' attorney and her attorney's letters to the subcommittee fail to cite a single case in support of the notion that a witness under federal subpoena may simply decline to show up at a hearing. Indeed, no court decision that we are aware of supports the White House's astounding claim that a former White House official has the option of refusing to even appear in response to a Congressional subpoena.

To the contrary, the courts have ruled that no current or formal official, including the President, is so above the law that he or she may completely disregard a legal directive such as the committee subpoena. And in keeping with this principle, both present and former White House officials have testified before Congress numerous times, including incumbent and former White House counsels. For example, I mentioned earlier that Beth Nolan has told our subcommittee that she appeared before Congressional committees four times on matters directly related to her duties as White House counsel, three of those times while she was still serving in that position. As I also mentioned earlier, a CRS study documents some 74 instances where White House advisors have testified before Congress since World War II.

Moreover, even the 1999 Office of Legal Counsel opinion referred to in Mr. Fielding's July 10th letter refers only to current White House advisors, and not to former advisors. And it acknowledges that the Courts might not agree with its conclusion as to current advisors. Such Justice Department opinions, including the new one issued just yesterday to try to support this claim, are not the law. They state only the executive branch's own view of the law, and have no legal force whatsoever. It is also noteworthy that both of the Justice Department opinions relied on by the White House and Ms. Miers fail to cite a single court case in support of their novel legal conclusions.

Just yesterday, another former White House adviser, Sara Taylor, appeared before the Senate Judiciary Committee pursuant to subpoena and testified about at least some of the relevant facts in this matter despite the White House's assertion of executive privilege.

This White House's asserted right to secrecy goes beyond even Richard Nixon, who initially refused to allow his White House Counsel, John Dean, to testify before Congress, on almost exactly the same grounds being asserted now, but then agreed that Mr. Dean and other White House officials could testify.

Third, the White House has failed to demonstrate that the information we are seeking from Ms. Miers, testimony and documents as called for by the subpoena, is covered by executive privilege. We were not expecting Ms. Miers to reveal any communication to or from the President himself, which is the most commonly recognized scope of the Presidential communications privilege. In fact, as recently as June 28th, a senior White House official at an authorized background briefing specifically stated that the President had no personal involvement in receiving advice about the firing of the U.S. attorneys, or in approving or adjusting the list. Ms. Taylor testified yesterday that she was not aware of any personal involvement by the President.

We are seeking information from Ms. Miers and other White House officials about their own communications and their own involvement in the process. The White House claims that executive privilege nevertheless applies, because it also covers documents and testimony by White House staff who advised the President, apparently based on the Espy decision. But the Espy court made clear that expansion of the Presidential communications privilege applied only when information is sought in a judicial proceeding, and should not be read as in any way affecting the scope of the privilege in the congressional-executive context. And the Espy court also made clear that the privilege extends only to communications from or to presidential advisors in the course of preparing advice for the President.

But the White House has maintained that the President never received any advice on, and was not himself involved in, the U.S. attorney firings. The Presidential communications privilege, even as expanded by the Espy case, simply does not apply here.

Fourth, with respect to our subpoena's request for documents from Ms. Miers, the courts have required a party raising a claim of privilege to provide a "descriptive, full, and specific itemization of the various documents being claimed as privileged" and "precise and certain reasons for preserving their confidentiality."

These words are from the Smith v. FTC case and the Black v. Sheraton case.7

Here, no such itemized privilege log has been provided by Ms. Miers or her counsel. In effect, the White House is telling Congress and the American people that documents and testimony are privileged without deigning to explain why. In other words, the White House is simply saying, "Trust us. We will decide."

Fifth, even assuming that the information we have asked for fell within the scope of a properly asserted executive privilege, any such privilege is outweighed by the compelling need for the House and the public to have access to this information. As the Supreme Court held in U.S. v. Nixon, claims of executive privilege are not absolute, and depend on balancing of the need for privilege versus the need for the information being sought. Here, the balance clearly weighs against sustaining any privilege claim.

The privilege claims here are weak. In addition to the points I have made already, it is important to note that the claims by the White House are not limited to specific discussion or documents, but are an attempt at a blanket prohibition against any documents being provided, and any testimony from present or former aides whatsoever, including concerning communications with people outside the Executive branch altogether. And the need for information we seek from the White House here is very strong. We have tried extensively to obtain information from other sources, including reviewing thousands of documents provided by the Justice Department, and hearing testimony or conducting on-the-record interviews with twenty current former or current Department of Justice officials. Yet we still don't know, for example, how or why or by whom Mr. Iglesias was put on the list to be fired. We still don't know what actions, if any, were taken by Karl Rove or other White House officials on the firing of Mr. Iglesias. Similar questions remained unanswered in the firing of other U.S. attorneys and about the involvement of White House officials in the misleading information provided to Congress on this subject.

Why is this important? For several reasons: for one, the evidence obtained thus far raises serious concerns about whether federal laws have been broken in the U.S. attorney matter, including laws prohibiting obstruction of justice, laws like the Hatch Act against retaliating against federal employees for improper political reasons, and laws prohibiting misleading or obstructing Congress. The Courts have made clear that executive privilege is generally overcome when the information sought concerns government misconduct. Indeed, the Court in the Espy case stated that when there is any reason to believe that government misconduct occurred, the deliberative process element of executive privilege disappears altogether.

In addition, obtaining more complete information on what happened in the U.S. Attorney matter may well reveal problems warranting new legislation by Congress. This is a well-recognized ground for authorizing Congress to obtain executive branch information, as the Supreme Court in the case of McLean v. Doherty. Indeed, we have already passed legislation changing the rules for interim appointments of U.S. attorneys as an outgrowth of our investigation so far.

The White House claims that Congress' role is limited because the appointment of U.S. attorneys is done by the President with the Senate's approval. And that's true: however, only because of a law passed by Congress itself. Under the Constitution, both the Courts and the Department itself have recognized that U.S. attorneys are considered inferior officers, and that rules for their appointment and removal are not vested in the sole discretion of the President, but can be set by Congress just as we did recently in passing the law on interim appointments of U.S. Attorneys.

Finally, even assuming it is never proven that any laws were broken here, the evidence already clearly indicates an abuse of power and legal authority by the administration in the U.S. Attorneys matter. Investigating and exposing such abuses is clearly within the oversight authority of Congress and justifies obtaining the kind of information that we seek.

As the Supreme Court ruled in the Watkins case 50 years ago, Congress has broad power to investigate the administration of existing laws and to expose corruption, inefficiency, and waste or similar problems within the executive branch. Regardless of whether laws were broken, it is clearly important for Congress and the American people to know, for example, whether any of these U.S. attorneys were fired because they refused to bring vote fraud or other cases that Republicans wanted for partisan reasons, or because they pursued corruption or other cases against Republicans.

For all the foregoing reasons, I hereby rule that Ms. Miers' refusal to comply with the subpoena and appear at this hearing and to answer questions and provide relevant documents regarding these concerns, cannot be properly justified on executive privilege or related immunity grounds. These reasons are without prejudice to one another and to any other defects that may, after further examination, be found to exist in the asserted privilege.

The Chair will now entertain a motion to uphold the Chair's ruling regarding Ms. Miers' failure to appear and regarding her failure to answer questions and provide relevant documents.

Chairman Conyers: Madam Chairperson, so moved.