In a broadly worded legal opinion, the Justice Department has concluded that President Bush’s former top lawyer, and possibly other senior White House officials, can ignore subpoenas from Congress to testify about the firings of U.S. attorneys.
The three-page opinion raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt for not cooperating with the investigation into the firing last year of eight top prosecutors.
The opinion was prepared this week by the department’s Office of Legal Counsel, in response to questions from former White House Counsel Harriet E. Miers, who was subpoenaed to testify today before the House Judiciary Committee. Miers told the panel in a letter faxed Tuesday night that she would not appear, citing the Justice memo and advice from the White House.
Under the law, the U.S. attorney for the District of Columbia decides whether to pursue contempt of Congress cases. Though that official can exercise independent judgment, some legal experts said it might be hard to ignore the opinion from the legal counsel office, whose decisions are often viewed as controlling throughout the federal government.
Others said that, as an alternative, lawmakers might seek the appointment of an independent special counsel to investigate any contempt charges.
The legal opinion surfaced as another former White House official, Sara M. Taylor, testified Wednesday before the Senate Judiciary Committee about the U.S. attorney case. Taylor was the White House political director and reported to longtime Bush advisor Karl Rove.
Like Miers, Taylor was ordered by the White House earlier this week not to answer Congress’ questions concerning internal deliberations about the fired prosecutors.
During her appearance, however, and periodically consulting with her attorney, she tried to walk a legal tightrope, answering what she described as “fact-based” questions, in an apparent effort to dissuade committee members from finding her in contempt.
She testified, for example, that she had never discussed the firings with Bush or attended meetings with the president where the issue was discussed.
“I don’t believe that anybody in the White House did any wrongdoing,” she said, describing the firings as “awkwardly handled.”
Taylor, 32, said she did not personally add or remove names to the list of prosecutors to be dismissed. But she declined to answer when asked who was responsible for preparing the list.
She said she received complaints from persons outside the White House about U.S. attorneys but could not recall specific phone calls. She acknowledged writing an e-mail in which she called one of the fired U.S. attorneys “lazy.” She testified that she regretted the remark.
Democrats said that they found answers of the former aide to be self-serving, and that they were still considering holding Taylor in contempt.
“You seem to be selective in the use of the presidential privilege,” said Sen. Benjamin L. Cardin (D-Md.). “It seems like you’re saying that, ‘Yes, I’m giving you all the information I can,’ when it is self-serving to the White House, but not allowing us to have the information and make independent judgments.”
House members were hoping that, like Taylor, Miers would choose to answer some questions. They said her decision not to appear was unexpected.
Correspondence released by the House Judiciary Committee on Wednesday showed that Miers, through her attorney, had asked White House Counsel Fred F. Fielding whether she had to attend the hearing to personally assert the privilege. After consulting the Justice Department, Fielding wrote back saying that Miers had “absolute immunity from compelled Congressional testimony” and that “the president has directed her not to appear.”
The position prompted an angry response from House Judiciary Committee Chairman Rep. John Conyers Jr. (D-Mich.) and Rep. Linda T. Sanchez (D-Lakewood), chairwoman of the commercial and administrative law subcommittee.
“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,” Conyers and Sanchez wrote to George T. Manning, Miers’ lawyer. “A refusal to appear ... could subject Ms. Miers to contempt proceedings.”
Miers, who left the White House in January, was counsel to the president in the winter of 2005 when the fate of the U.S. attorneys in Bush’s second term was first being discussed. The White House has said that Miers once suggested that all 93 U.S. attorneys be dismissed.
Some legal experts said they disagreed with the sweeping privilege that the administration was claiming.
“The privilege does not entitle you to refuse to appear. The privilege entitles you to refuse to answer questions when you appear if those questions call for privileged information,” said Stephen Gillers, a legal ethics professor at New York University law school. “No one can claim the privilege entitles you to ignore the body that subpoenas you.”
“Miers should show up,” said Mark J. Rozell, a political science professor and expert on executive privilege at George Mason University. “There is no reason that she cannot answer questions about matters unrelated to presidential confidentiality and then refuse certain questions that she believes violate that principle.
“Besides, the White House dumped a lot of the burden for this fiasco on her shoulders, so she has the most incentive to talk and clear herself.”
The Justice Department memo cited a 1999 opinion of then-Atty. Gen. Janet Reno in which Reno concluded that the White House did not have to turn over documents to Congress about a decision by President Clinton to commute the prison sentences of 16 members of a Puerto Rican nationalist group convicted of bomb-making and other crimes.
Reno held that because the pardon power was an exclusive right of the executive branch, Congress had no right to the documents.
Though Bush has the power to hire and fire U.S. attorneys, some observers said the two cases were not necessarily comparable.
Unlike the pardon power, Congress has “constitutional authority to create and regulate the general conditions of appointment and removal for U.S. attorneys,” said Peter M. Shane, a professor at Ohio State University law school. “Moreover, it is entitled to investigate whether executive branch officials who have already testified under oath have testified truthfully.”
The Justice Department memo underscores inherent conflicts of interest in possible prosecutions arising from the firings. Paul D. Clement, a senior Justice official who has been designated the acting attorney general for purposes of the investigation, has already advised Fielding on his view of the breadth of executive privilege.
The latest memo “gives them some cover to avoid pursuing prosecution,” Rozell said.
There’s “probably little chance” that the Justice Department will follow through and prosecute, said Louis Fisher, an executive privilege specialist at the Library of Congress. “But that doesn’t save Miers from the awful ordeal of a contempt [proceeding] by one of the chambers.”
A Justice Department spokesman declined to comment about how the agency would handle such a referral. “The question is a hypothetical, so we won’t speculate,” Erik Ablin said.