Miers Refuses to Comply, Contempt Front and Center

Harriet Miers, former White House counsel, said on Tuesday she would not comply with Congressional orders. Congress has issued subpoenas for Miers's testimony and any documents in her possession related to the US attorney purge. Her refusal could lead to criminal proceedings or to detention by Congressional security forces.

Congress issued a subpoena for Miers after negotiations with the White House broke down. The subpoena ordered Miers to attend a House Judiciary subcommittee hearing on July 12, which had been scheduled specifically to take her testimony. Miers did not attend the hearing, claiming the President's assertion on executive privilege shielded her from having to testify. With Miers absent, the subcommittee voted to overrule her claim of privilege, the first step on the way to holding Miers in contempt.

In a letter to House Judiciary Chairman John Conyers (D-Mich.), Miers's lawyer said President Bush had "specifically directed [Miers] not to appear, not to produce documents ... and not to provide testimony." The letter stated the Judiciary Committee's "dispute is not with Ms. Miers, but with the executive branch."

In a letter to Miers's lawyer, Conyers set Tuesday as a deadline for Miers to comply with the subpoena or to face the possibility of contempt charges. The House has two avenues for enforcing their subpoenas: criminal contempt proceedings or inherent contempt proceedings. Conyers threatened to use the power of inherent contempt, an authority which permits Congress to order the Sargent at Arms to arrest the offending individual and physically detain them until they comply with the subpoena. This method was popular prior to the 1930s but has not been used in over 70 years.

The inherent contempt power is being considered because criminal contempt proceedings would have to be enforced by the Department of Justice, the very department which Congress is investigating. In fact, the interim US attorney for the Washington DC area, Jeffrey Taylor, was working directly with architects of the US attorney purge before he was appointed to his current position. If Congress attempts to hold Miers in criminal contempt, Taylor would decide whether to convene a grand jury to try Miers.

During the planning stages of the US attorney purge, Taylor served as counsel for Attorney General Alberto Gonzales. Email communications between Taylor and Kyle Sampson, then chief of staff for the attorney general, and William Mercer, former acting associate attorney general, show Taylor worked closely with Sampson and Mercer while the two men were planning the firings. Specifically, the emails show Taylor was asked to assist Sampson and Mercer when the DOJ came under fire for alleged lack of enforcement of illegal-immigration laws. A lack of illegal-immigration enforcement was later used as a rationale for the removal of Carol Lam, former US attorney for the Southern District of California.

Taylor's close professional relationship with the Bush administration and the attorney general, and Taylor's potential role in the firing plan, raise a potential conflict-of-interest issue in this situation. That issue could prompt Taylor to recuse himself from involvement. According to Ohio State University law professor Peter Shane, Taylor "is obligated under Department of Justice regulations at least to consider recusal and, if he was involved in the purge, recusal would be mandatory."

Shane pointed to the "US Attorney Manual," which covers recusals: "If a conflict of interest exists because a United States attorney has a personal interest in the outcome of the matter or because he has or had a professional relationship with parties or counsel, or for other good cause, he should recuse himself. The requirement of recusal does not arise in every instance in which he has had a professional relationship with parties or counsel, but only where a conflict of interest exists ... [w]here there is the appearance of a conflict of interest, the United States attorney should consider a recusal."

Taylor's spokesperson has said previously that because Congress has not yet held anyone in contempt, "it is premature to comment on the issue of recusal." Taylor's office previously failed to respond to detailed questions about Taylor's involvement in the attorney purge in time for this report.

Separately, Conyers has scheduled a subcommittee meeting to rule on other claims of executive privilege in the US attorney purge investigation. President Bush has refused to allow his chief of staff Joshua Bolten to cooperate with the Committee. Bush has also ordered the Republican National Convention not to comply with a Congressional subpoena for emails Bush administration officials sent using RNC email accounts. Conyers has warned that failure to comply with subpoenas could result in contempt charges for Bolton and RNC chairman Robert Duncan.

Representative Linda Sanchez (D-Ca.), chairwoman of the Commercial and Administrative Law subcommittee, said of the situation "this Committee respects the importance of executive privilege as a safeguard for internal deliberations on the legitimate creation of policy, but it cannot be used as a blanket protection to avoid Congressional oversight as authorized by the Constitution."

Matt Renner is a reporter for Truthout.

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