Constitutional Perfect Storm (almost)

[Alan Tauber]

I would think Miers has an extra claim to privilege, being the White
House counsel at the time the advice was rendered.  Yes, the White House
Counsel advices the office, but this was advice sought in the
performance of the office, so it seems there might be an additional
attorney-client claim that could be made.  But I'll admit, I'm not
familiar with the ins and outs of privilege as it applies to the
Counsel's office.

Alan

Alan Tauber, J.D.
Ph.D. Candidate, Political Science
University of South Carolina
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=467126
>>> Lou Fisher <lfisher at loc.gov> 07/11/07 4:47 PM >>>
Fielding's position that Harriet Miers has "absolute immunity" from
appearing before a congressional committee is supposedly buttressed by a
Justice Department opinion that states: "[t]he President and his
immediate advisors are absolutely immune from testimonial compulsion by
a Congressional committee."

That is precisely the position taken by President Nixon in 1973
regarding testimony by White House Counsel John Dean.  Nixon quickly
reversed course and let Dean testify.  See pages 58-60 of the attached.

Lou

>>> Gordon Silverstein <gsilver at berkeley.edu> 07/11/07 4:28 PM >>>
Bush has now "ordered" Harriet Miers to refuse to appear before
Congressional Committee and to ignore the subpeona, arguing she has
unqualified and total immunity from congressional investigations.

That's a constitutional confrontation of the first order, to be sure.
But
... imagine if Miers had been confirmed to the Supreme Court?

Congress would be issuing a subpeona to a sitting Supreme Court Justice
who
would be under "orders" from the President to refuse to testify,
generating
a sure-fire Supreme Court test of the powers of congressional committees
to
compel testimony ... the perfect storm of separation of powers
confrontations ..... 



July 11, 2007
Miers Will Not Appear Before Committee, Lawyer Says 
By THE ASSOCIATED PRESS

Filed at 4:05 p.m. ET

WASHINGTON (AP) -- 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.