AP posted this about 8 minutes ago (3:29 PM EST):
President Bush ordered his former White House counsel, Harriet Miers, to defy a congressional subpoena and refuse to appear 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. (Emphasis added) AP via HuffPost
AP promises to have more as the story develops.
AP filed this additional material at 3:37 PM EDT:
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.
Looks like Conyers, at least, is not taking this lying down.
Load up on popcorn, folks. This could be a long one.
Conyers and Sanchez have posted this response to the Fielding letter (h/t to astoundedstill):
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. ...
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. (Emphasis added)
As far as I know, this is the first time inherent contempt has been mentioned in an official Congressional statement. This is important because inherent contempt does not involve the USA for Washington DC, and so cannot be stymied by the DoJ.
Some more words from Linda Sanchez:
"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."
It's getting hard to keep up with this. But I'm peddling as fast as I can.
From the same AP story, now updated at 4:05 PM:
[Taylor] quickly found out what Miers might have already known: It's almost impossible to answer some questions but not others without breaching either the subpoena or Bush's executive privilege claim.
"I have not done a great job at that," Taylor said of the predicament at one point. "I have tried."
Sen. Arlen Specter, R-Pa., said that may not be enough to protect her from a contempt citation.
"There's no way you can come out a winner," said Specter, the panel's senior GOP member and also its former chairman. "You might have been on safer legal ground if you'd said absolutely nothing."
As for the prospects of pursuing a criminal citation for contempt of Congress, Leahy said, "That's a decision yet to be made."
And on that note, I have to go do some work for a while.
Update 4 (last one, I promise):
A note in TPM caught my eye; Josh quotes from the United States Code:
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. (Emphasis added) 18 USC 1505
Bush didn't just order Miers to keep quiet; he ordered her not to appear at all, even for the purpose of invoking executive privilege. On its face, then, this appears to violate Section 1505 - interfering with a Congressional investigation. That takes it into the criminal realm, where executive privilege is much weaker (not that it wasn't already) and becomes further grounds for, dare I say it, the I-word.