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Miers’ Attorney Says She Will Not Attend Hearing

Posted on by Jesse Lee

Today, attorney George T. Manning, representing former White House Counsel Harriet Miers, rescinded his prior confirmation that Ms. Miers would attend the House Judiciary Committee’s hearing on Thursday in response to a subpoena and would assert executive privilege to certain questions posed by the Committee, as directed by the President.

Judiciary Committee Chairman John Conyers and Subcommittee Chairwoman Linda Sánchez responded to Mr. Manning today:

July 11, 2007

BY FAX AND U.S. MAIL

Mr. George Manning
Jones Day
1420 Peachtree St., NE, Suite 800
Atlanta, GA 30309-3053

Dear Mr. Manning:

We write in response to your letter dated July 10, which was not faxed to us until 7:15 pm last night. We are disappointed and very concerned by your statement that, based upon a July 10 letter to you from White House Counsel Fred Fielding, your client Harriet Miers intends to disregard the subpoena that was duly issued to her by the Committee on the Judiciary, and refuse even to appear at tomorrow's hearing of the Subcommittee on Commercial and Administrative Law. A congressional subpoena, such as the one issued to Ms. Miers, carries with it two obligations: the obligation to appear, and the obligation to testify and/or produce documents. Even if a witness intends to assert privilege in response to a subpoena, that intention to assert privilege does not obviate the obligation to appear.

We are aware of absolutely no court decision that supports the notion 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 made clear that no present or former government official — even the President — is above the law and may completely disregard a legal directive such as the Committee's subpoena. In fact, both present and former White House officials have testified before Congress numerous times, including both then-serving and former White House counsel. For example, former White House Counsel Beth Nolan explained to our Subcommittee that she testified before Congressional committees four times, three times while serving as White House counsel and once as former White House counsel. A Congressional Research Service study documents some 74 instances where serving White House advisers have testified before

Congress since World War II.1 Moreover, even the 1999 OLC opinion referred to in Mr. Fielding's July 10 letter refers only to current White House advisers and not to former advisers and acknowledges that the courts might not agree with its conclusion. Such Justice Department opinions are not law, state only the Executive Branch's view of the law, and have no legal force whatsoever. We note finally that another former White House adviser subpoenaed by the Senate Judiciary Committee in the U.S. Attorney matter, Sara Taylor, appeared today pursuant to Congressional subpoena and testified about many of the relevant facts while also declining to testify about other relevant facts based on the assertion of executive privilege.

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.

We are prepared at the hearing tomorrow to consider and rule on any specific assertions of privilege in response to specific questions. We strongly urge you to reconsider, and to advise your client to appear before the Subcommittee tomorrow pursuant to her legal obligations. The Subcommittee will convene as scheduled and expects Ms. Miers to appear as required by her subpoena.

Sincerely,

John Conyers, Jr.

Chairman

Linda T. Sánchez

Chairwoman, Subcommittee on Commercial and Administrative Law

cc: The Honorable Lamar S. Smith

The Honorable Chris Cannon

Judiciary Committee release in extended entry:

Miers’ Attorney Says She Will Not Attend Hearing Judiciary Panel to Consider Privilege Claims Tomorrow

( Washington, DC)- Today, an attorney for former White House Counsel Harriet Miers rescinded his prior confirmation that Ms. Miers would attend the House Judiciary Committee’s hearing on Thursday in response to a subpoena and would assert executive privilege to certain questions posed by the Committee, as directed by the President.

In a July 10 letter addressed to Committee Chairman John Conyers, Jr. and Subcommittee Chairwoman Linda Sánchez, attorney George T. Manning said the decision was based on a letter from current White House Counsel Fred Fielding further directing Miers not to even appear at the hearing.

“I am extremely disappointed in the White House’s direction to Ms. Miers that she not even show up to assert the privilege before the Committee,” Conyers said. “We understand that the White House has asserted privilege over both her testimony and documents, and we are prepared to consider those claims at tomorrow’s hearing.”

“It is disappointing that Ms. Miers has chosen to forego this opportunity to give her account of the potential politicization of the justice system,” Sánchez added. “Our investigation has shown — through extensive interviews and review of documents — that Ms. Miers played a central role in the Bush Administration's decision to fire chief federal prosecutors.

“The White House had previously offered to allow Ms. Miers to talk with our Committee — without an oath or transcription — so I presume that her testimony is not a grave threat to the health of the executive branch. I am hopeful that Ms. Miers will reconsider the White House's questionable assertion of executive privilege and give her testimony on the firing of U.S. Attorneys.”

The Committee also notes that today Sara Taylor, the former White House Political Director, appeared before the Senate Judiciary Committee. Although Ms. Taylor declined to answer certain questions based on the President's assertion of executive privilege, she answered many other questions substantively. Most importantly, Ms. Taylor did not attempt to simply ignore her subpoena and not even appear at the hearing, and her appearance before the Senate Committee permitted full consideration of the President's assertion of privilege.

Ms. Miers is scheduled to appear before the Judiciary Subcommittee on Commercial and Administrative Law tomorrow, July 12, at 10 a.m. in 2141 Rayburn House Office Building. The Subcommittee will meet as scheduled.

“As a former public official and officer of the court, Ms. Miers should be especially aware of the need to respect legal process, and we expect her to appear before the Committee tomorrow as scheduled,” Conyers said.

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