Democrats Move Toward Holding Miers in Contempt
Congressional Democrats inched closer to holding Harriet Miers in contempt yesterday after the former White House Counsel reiterated her decision not to comply with subpoenas seeking testimony and documents related to the recent firing of eight U.S. attorneys.
In a letter to House Judiciary Committee Chairman John Conyers Jr. of Michigan, Miers's lawyer, George Manning, reasserted that Miers's decision not to comply—or even show up at the committee's scheduled hearing—came at the direction of President Bush, who has asserted executive privilege over the testimony and documents House Democrats seek. "The committee's dispute is not with Ms. Miers but with the executive branch," Manning wrote.
But Miers will likely remain at the center of this escalating battle between the two branches of government. Democrats subpoenaed Miers last month after Justice Department E-mails indicated she had been involved in the decision to fire the attorneys. The dust-up has shown that Justice Department officials sometimes based career hiring decisions on applicants' political leanings. Democrats say they are committed to answering the question of why the U.S. attorneys were fired and who drew up the final list. The White House has maintained that U.S. attorneys, who are political appointees, can be hired—or fired—for almost any reason.
The House Judiciary Committee is weighing what to do next but has few options other than moving to vote Miers in criminal contempt. "They're on the road, and whether they go fast or slow, it is the road to contempt," says Charles Tiefer, a law professor at the University of Baltimore School of Law and former deputy counsel to the House.
The committee could reach a decision soon, but the bill would then need to come up for a vote on the House floor. But even if a vote of contempt passes, the choice to prosecute lies in the hands of the U.S. attorney for the District of Columbia. That's now Jeffrey Taylor, a former counselor to Attorney General Alberto Gonzales. The D.C. U.S. attorney is not required to prosecute such cases—and in the past has refused to do so.
The House could also vote to put Miers in "inherent contempt," which would mean holding her in the congressional jail, though that hasn't happened since the 1930s.
Or Democrats could turn up the pressure on the executive branch by subpoenaing other White House officials connected to the firings. Congress has already authorized subpoenas for a number of officials, including J. Scott Jennings, deputy political affairs director; William Kelley, outgoing deputy White House counsel; and Karl Rove, Bush's chief political adviser. However, the president is likely to assert executive privilege over their testimony, as he did with Sara Taylor, the former White House political director, who testified last week under a subpoena by the Senate.
Another wild card is the House's subpoena to the Republican National Committee for documents related to the firings. Conyers gave the RNC extra time yesterday for the White House to determine whether documents contain privileged material.
But if the last most significant battle over executive privilege is any guide, resolution may not come through the legal system. In 1982, then Environmental Protection Agency Director Ann Gorsuch Burford asserted executive privilege over a congressional subpoena, leading the House to hold her in contempt. The U.S. attorney held off prosecution, but eventually the White House, under the direction of then (and now) White House Counsel Fred Fielding, negotiated a compromise that allowed Congress to view the documents.