President Bush ordered his former White House counsel, Harriet Miers, to defy a congressional subpoena and refuse to testify Thursday before a House panel investigating U.S. attorney firings.
"Ms. Miers has absolute immunity from compelled congressional testimony as to matters occurring while she was a senior adviser to the president," White House Counsel Fred Fielding wrote in a letter to Miers' lawyer, George T. Manning.
Manning, in turn, notified committee chairman John Conyers, D-Mich., that Miers would not show up Thursday to answer questions about the White House role in the firings of eight federal prosecutors over the winter.
Conyers, who had previously said he would consider pursuing criminal contempt citations against anyone who defied his committee' subpoenas, revealed the letters after former White House political director Sara Taylor testified Wednesday before the Senate Judiciary Committee.
Taylor said she knew of no involvement by the president in the firings of the U.S. attorneys.
She irked senators by refusing to answer many questions from a panel investigating whether the firings were politically motivated. She said she was bound by Bush's position that White House conversations were protected by executive privilege.
Conyers said of Miers, Bush's former White House lawyer, "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."
Fielding said the Justice Department had advised the White House that Miers had absolute immunity from compelled congressional testimony.
"The president has directed her not to appear at the House Judiciary Committee hearing on Thursday, July 12, 2007," Fielding wrote.
Agreeing to disagree
Taylor, who met briefly with Leahy before the hearing, said she would answer only limited questions to comply with her former boss' orders, unless a court orders her to comply with the congressional subpoena instead.
"While I may be unable to answer certain questions today, I will answer those questions if the courts rule that this committee's need for the information outweighs the president's assertion of executive privilege," said Taylor, 32, who left her White House job two months ago.
"Thank you for your understanding," she added.
Democrats made clear they did not understand or agree, noting that she is a private citizen compelled to testify with the subpoena under threat of being held in contempt of Congress. Leahy asked Taylor repeatedly whether she had met with or talked to Bush about the replacement of U.S. attorneys. Taylor repeatedly refused to answer, citing Bush's instructions.
She got some backup from a GOP senator.
"I think your declining to answer the last series of questions by the chairman was correct under the direction from White House counsel," the committee's ranking Republican, Sen. Arlen Specter, R-Pa., said.
"Whether White House counsel is correct on the assertion of executive privilege is a matter which will be decided by the courts," Specter added. But, in the senator's view, "congressional oversight has the better of the argument."
Democrats insisted there were plenty of things about the firings that Taylor could discuss because they are not covered by Bush's executive privilege claim.
Leahy took the unusual step of allowing Taylor's lawyer, Neil Eggleston, to sit next to her at the witness table. There, he was to advise her as the hearing progressed on which questions she could or could not answer under the president's directive. Leahy and Taylor met briefly in the minutes before the hearing began.
Democrats said the same standard applied to a second former Bush aide, one-time White House counsel Harriet Miers. Miers, subpoenaed to appear before the House Judiciary Committee on Thursday, said through her lawyer that she "cannot provide the documents and testimony that the committee seeks."
"Ms. Miers is thus subject to conflicting commands, with Congress demanding the production of information that the counsel to the president has informed her she is prohibited from disclosing," Miers' lawyer, George Manning, wrote to House Judiciary Committee Chairman John Conyers of Michigan and ranking Republican Lamar Smith of Texas.
The two former aides are now private citizens, and some congressional officials have argued that it is not clear Bush's executive privilege claim covers them even though White House Counsel Fred Fielding told lawyers for Miers and Taylor that the president was directing them not to answer questions or provide any information about the firings.
A court fight could take years, dragging on even after Bush leaves office.
Eight U.S. prosecutors fired
So opens the latest round in the dispute over the administration's firing last winter of eight federal prosecutors. The congressional probe, now in its seventh month, has morphed into a broader standoff over what information the president may keep private and what details Congress is entitled to receive as part of its oversight of the executive branch.
Claims for executive privilege are based upon the separation of powers set forth in the Constitution. As a separate but equal branch of government, it is argued, the executive can resist efforts by the legislative and judicial branches to encroach on its authority. Presidents have argued against releasing some documents to Congress and against forcing administration officials to testify about private discussions, contending that such disclosures could damage the executive branch's ability to function independently.
Presidents also say they won't be able to get unvarnished advice from aides who worry that their words will be made public later.
Taylor and Miers were among Bush's closest aides during the period when the firings were planned. Democrats want to know if the prosecutors were fired at the White House's direction. Bush has denied that there were improper political motives.
What next for Gonzales?
Also looming over the proceedings is the fate of Attorney General Alberto Gonzales. Democrats have widely called for his resignation and a few Republicans have joined them. But Bush remains supportive of his longtime friend, and Gonzales shows no signs of stepping down.
Taylor and Miers were among Bush's closest aides during the period the firings were planned. E-mails released by the Justice Department up to, including and in the aftermath of the firings show Taylor and Miers were participants in the exchanges. At one point, the White House has said, Miers proposed firing all 93 of the nation's prosecutors, but Gonzales rejected that suggestion.
Democrats want to know if the prosecutors were fired at the White House's direction, perhaps to make room for Bush loyalists. Bush and Gonzales have denied that there were improper political motives behind the firings. The White House has pointed out that federal prosecutors are political appointees, and the president can hire and fire them for almost any reason.