Congress Subpoenaed Miers 3 Weeks Ago, But She Wouldn’t Comply

By Jason Leopold

The House Judiciary Committee quietly subpoenaed former White House Counsel Harriet Miers three weeks ago demanding that she provide testimony about her role in the firings of nine U.S. Attorneys in 2006. 

According to a letter sent to Elliot Mincberg, chief counsel of oversight and investigations for the Judiciary Committee, by Miers’ attorney the Judiciary Committee subpoenaed Miers on Jan. 9. She was asked to provide a deposition to the panel on Jan. 16. She did not comply with the subpoena and Conyers’ committee did not state publicly that he sought her testimony earlier this month.

Miers’ attorney, George Manning, wrote to Mincberg Jan. 15, and enclosed a copy of a Jan. 15, letter drafted by former White House Counsel Fred Fielding which said Miers had “absolute immunity.”

“I am in receipt of the subpoena to Ms. Miers dated January 9, 2009,” Manning’s letter says. “Please find attached a letter from the Counsel to the President of the United States informing Ms. Miers that, in view of the Executive Branch’s assertions of executive privileges and immunities in this matter, she continues to be directed not to provide information (including documents or testimony) to the Congress in this matter, including the deposition scheduled for January 16, 2009.”

Conyers’s committee has been pursuing testimony and documents from Miers and Bolten about their involvement in the decision to fire the federal prosecutors, a move that a senior Justice Department official said was designed to remove U.S. Attorneys who were deemed not “loyal Bushies.”

Earlier this month, a new set of House rules was passed reviving subpoenas issued during the 110th Congress. Conyers’ office did not return calls late Thursday to explain the subpoena issued to Miers on Jan. 9.

Fielding sent identical letters to former White House political adviser Karl Rove and Bush former Chief of Staff Josh Bolten advising them not to cooperate with Congressional subpoenas related to the politicization of the Justice Department.

Rove was subpoenaed earlier this week, but said publicly Thursday he does not intend to show up.

The dispute over Miers and Bolten’s testimony arose when President Bush forbade them to comply with a congressional subpoena about the prosecutors’ firings in 2006. The House then voted to hold the two officials in contempt of Congress, the first time in 25 years a full chamber of Congress has voted on a contempt-of-Congress citation.

In September 2008, U.S. District Judge John Bates rejected Bush’s position, saying the concept of blanket executive privilege lacked legal precedent.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” wrote Bates, a Bush appointee. “In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

Last October, a Republican-dominated federal Appeals Court panel blocked the enforcement of the Judiciary Committee subpoenas. The panel also refused to expedite consideration of a White House appeal challenging a District Court ruling that had ordered Miers and Bolten to comply. Conyers’ committee appealed the decision. The matter has yet to be decided.

The Justice Department’s Inspector General and the Office of Professional Responsibility issued a 356-page report last year on the U.S. Attorney firings that “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.”

Inspector General Glenn Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, found that Miers was involved in at least two of the dismissals and that Bolten played a role in at least one.

Neither Miers nor Bolten agreed to be interviewed by the Justice Department’s internal watchdogs.

Bolten and Miers were contacted by Nora Dannehy, a federal prosecutor from Connecticut who was appointed by Attorney General Michael Mukasey to continue the investigation of the U.S Attorney firings, according to people familiar with her probe. It’s unknown, however, whether they cooperated or were subpoenaed.

Dannehy is expected to file a preliminary report with the Justice Department in March. 

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