Bush tells Miers not to appear before House Judiciary

Miers' lawyer says a committee counsel was mistaken in his belief that Miers' appearance was confirmed.

By Alex Koppelman

Published July 11, 2007 7:40PM (EDT)

News just out in a statement from the House Judiciary Committee -- yesterday's assertion by the committee that former White House counsel Harriet Miers would appear before a judiciary subcommittee as scheduled on Thursday was wrong, and she will not in fact appear.

In a letter to committee chairman Rep. John Conyers Jr., D-Mich., and subcommittee chairwoman Rep. Linda Sanchez, D-Calif., Miers' lawyer, George T. Manning, writes,

"With all due respect, in my conversation with Elliot Mincberg, the majority committee counsel with whom I spoke, I did not confirm that Ms. Miers will appear on Thursday ... Rather, at committee counsel's suggestion, I discussed some logistical arrangements should Ms. Miers appear."

Manning also includes a letter written to him by Fred Fielding, the current White House counsel. In that letter, Fielding writes,

"I respectfully request that you inform Ms. Miers that the President has directed her not to appear."

Fielding says that the Department of Justice has informed him that "Ms. Miers has absolute immunity from compelled Congressional testimony as to matters occurring while she was a senior advisor to the President."

And in an ironic move sure to rankle Democrats, according to Fielding's letter the DOJ's opinion on the matter cites a 1999 opinion issued by then Attorney General Janet Reno in asserting that "[t]he President and his immediate advisors are absolutely immune from testimonial compulsion by a Congressional committee."

In a letter sent in response, Conyers and Sanchez say they "are disappointed and very concerned ... 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."

Conyers and Sanchez also push back against the citation of Reno's opinion, writing,

"[E]ven the 1999 OLC opinion ... 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."

The letter also mentions the committee's avenue of recourse, a citation for contempt of Congress, and "strongly urge[s]" Manning "to reconsider, and to advise your client to appear."

Jonathan Godfrey, a spokesman for the committee, confirmed to Salon that the hearing will proceed tomorrow as scheduled, even if Miers -- thus far the only witness slated to appear -- does not show. Godfrey would not comment on whether a citation against Miers was under consideration, and would only say that Salon should "tune in" to the hearing, as the committee's next move would likely be discussed then.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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