[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CONTINUING INVESTIGATION INTO THE U.S. ATTORNEYS CONTROVERSY AND
RELATED MATTERS (PART III)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 12, 2007
__________
Serial No. 110-75
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
----------
JULY 12, 2007
Page
OPENING STATEMENTS
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Commercial and
Administrative Law............................................. 4
INVITED WITNESS
Harriet Miers, former White House Counsel, Member at Locke,
Liddell, & Sapp PLLC
[Note: Ms. Miers declined to appear at this hearing.]
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan,
Chairman, Committee on the Judiciary, and Member, Subcommittee
on Commercial and Administrative Law........................... 5
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member,
Subcommittee on Commercial and Administrative Law.............. 6
Letter from Fred F. Fielding, White House Counsel, to George T.
Manning, Jones Day, dated July 10, 2007, submitted by the
Honorable Chris Cannon, a Representative in Congress from the
State of Utah.................................................. 21
Memorandum for the Counsel to the President from Stephen G.
Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice, dated July 10,
2007, submitted by the Honorable Chris Cannon, a Representative
in Congress from the State of Utah............................. 22
Letter from Fred F. Fielding, White House Counsel, to the
Honorable Patrick Leahy and the Honorable John Conyers, Jr.,
dated July 9, 2007, submitted by the Honorable Chris Cannon, a
Representative in Congress from the State of Utah.............. 25
Letter from Fred F. Fielding, White House Counsel, to the
Honorable Patrick Leahy and the Honorable John Conyers, Jr.,
dated June 28, 2007, submitted by the Honorable Chris Cannon, a
Representative in Congress from the State of Utah.............. 28
Letter from Paul D. Clement, Solicitor General and Acting
Attorney General, U.S. Department of Justice, to the President
of the United States, dated June 27, 2007, submitted by the
Honorable Chris Cannon, a Representative in Congress from the
State of Utah.................................................. 31
Letter from Janet Reno, Attorney General, U.S. Department of
Justice, to the President of the United States, dated September
16, 1999, submitted by the Honorable Chris Cannon, a
Representative in Congress from the State of Utah.............. 39
Memorandum for the White House Staff from Robert Lipshutz, White
House Counsel, dated February 8, 1979, submitted by the
Honorable Chris Cannon, a Representative in Congress from the
State of Utah.................................................. 44
Letter from George T. Manning, Jones Day, to the Honorable John
Conyers, Jr. and the Honorable Linda T. Sanchez, dated July 10,
2007, submitted by the Honorable Chris Cannon, a Representative
in Congress from the State of Utah............................. 50
Letter from George T. Manning, Jones Day, to the Honorable John
Conyers, Jr., and the Honorable Linda T. Sanchez, dated July
11, 2007, submitted by the Honorable Chris Cannon, a
Representative in Congress from the State of Utah.............. 51
Letter from the Honorable John Conyers, Jr., and the Honorable
Linda T. Sanchez to George Manning, Jones Day, dated July 11,
2007, submitted by the Honorable Chris Cannon, a Representative
in Congress from the State of Utah............................. 52
CONTINUING INVESTIGATION INTO THE U.S. ATTORNEYS CONTROVERSY AND
RELATED MATTERS (PART III)
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THURSDAY, JULY 12, 2007
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Linda
T. Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Conyers, Johnson,
Lofgren, Delahunt, Watt, Cohen, Cannon, Jordan, Keller, Feeney,
and Franks.
Staff present: Perry Apelbaum, Staff Director and Chief
Counsel; Eric Tamarkin, Majority Counsel; Daniel Flores,
Minority Counsel; and Anita Johnson, Chief Administrative
Officer.
Ms. Sanchez. The Committee on the Judiciary's Subcommittee
on Commercial and Administrative Law will now come to order.
I am extremely disappointed and deeply concerned that
former White House counsel Harriet Miers has apparently chosen
to forego this opportunity to give her account of the firing of
the U.S. attorneys and the potential politicization of the U.S.
Department of Justice.
Through extensive interviews and review of documents, it
appears clear that Ms. Miers played a significant role in the
Bush administration's decision to fire at least nine U.S.
attorneys.
For example, documents released by the Department of
Justice demonstrate that Ms. Miers was involved in the earliest
known conversations on the matter, including her recommendation
to consider the unprecedented midterm replacement of all 93
U.S. attorneys.
Acknowledging the jurisdiction and proper role of the
Congress in investigating the U.S. attorney firings, the White
House had previously offered to allow Ms. Miers to talk with
this Committee on the condition that it not be under oath and
that there be no transcript, so I presume that her testimony is
not a grave threat to the interests of the executive branch.
It is curious that the White House is now asserting a
blanket claim of executive privilege and has directed Ms. Miers
to not even appear today before the Subcommittee.
In fact, there is ample precedent of presidential advisors
from both political parties testifying before Committees and
Subcommittees of Congress. According to a report by the
nonpartisan Congressional Research Service, presidential
advisors have testified before Congress at least 74 times since
1944. Even a sitting president, President Gerald Ford,
testified before this Committee about his rationale for
pardoning President Richard Nixon.
More recently, White House advisors in the Clinton
administration frequently testified before Congress. Former
White House counsel Beth Nolan explained to the Subcommittee
that she testified before congressional Committees four times:
three times while serving as White House counsel and once as
former White House counsel.
Even President Bush has allowed close advisors such as
Thomas Ridge, then Assistant to the President for Homeland
Security, and Condoleezza Rice, then Assistant to the President
for National Security Affairs, to testify before Congress.
In contrast to his current assertion with regard to Ms.
Miers, the President did not raise the issue of executive
privilege when he wanted Mr. Ridge or Ms. Rice to tout a White
House legislative priority before Congress.
It seems that the President's inconsistent position on
allowing senior advisors to testify may reflect his concern
about what the advisor might say, rather than a steadfast
adherence to the concept of executive privilege.
Through our patient and good-faith efforts to negotiate
with the White House on this matter, we have been trying to
avoid a constitutional confrontation between the executive and
the legislative branches. The White House could have prevented
an escalation by engaging in reasonable negotiation.
Unfortunately, Ms. Miers and the White House have chosen a path
of confrontation instead of cooperation.
The framers of our Constitution created a system of checks
and balances to make sure that no branch of government could
escape scrutiny and accountability. They gave Congress the
responsibility to provide oversight of the executive branch.
The truth is that we are here today because this Congress takes
that obligation seriously.
I would now, at this time, like to recognize my colleague
Mr. Cannon, the distinguished Ranking Member of the
Subcommittee, for his opening remarks.
Mr. Cannon. Thank you, Madam Chair.
Former Democratic Speaker Jim Wright once said, ``One must
be constantly aware of the importance of maintaining a little
suspense.'' It appears my friends in the majority have
forgotten that lesson, because there is no suspense here.
We knew that Ms. Miers would not come today. We know she
had been instructed by the President not to appear. We know she
had been instructed not to testify. We know she had been
instructed not to provide documents.
We know that this investigation is proceeding only because
it has been sold on the basis of a string of fallacies.
The first fallacy: We don't know who put the U.S. attorneys
on the list.
But we do. The fact is, Kyle Sampson did, after checking
with top Justice officials in the know and drawing a consensus
from their opinions. When the list was final, he gave it to the
Attorney General as a final recommendation. None of this was
illegal or unethical.
Fallacy two: We don't know who decided to fire the U.S.
attorneys.
But, of course, we do. The attorney general did. Only in
Washington can politicians feign shock and disbelief at
political appointees being fired by another political
appointee.
Fallacy three: We don't know why the attorneys were fired.
The fact is we do, and none of those reasons appears to
have been about hindering prosecution of Republicans or
obstructing justice. The witnesses have consistently
articulated innocent reasons why the U.S. attorneys were fired,
including not vigorously prosecuting the President's priorities
like ending illegal immigrant smuggling and prosecuting gun
crimes. The attorney general stands behind the decisions to
this day, as does the deputy attorney general.
Fallacy four: We don't know if the U.S. attorneys were
fired to protect Republicans from prosecution and guarantee
prosecution of Democrats.
The fact is we do. David Margolis, the top career official
sitting at the pinnacle of the Justice Department, didn't
detect a whiff of any such shenanigans and says, ``Anyone who
would have suggested them would have gotten his''--that is,
David Margolis's--``sharp stick in the eye.''
Even the Democrats' contract investigator told the minority
that, ``If David Margolis said it happened that way, it did.
You can take it to the bank,'' he advised. We are paying
$250,000 for this man's advice; we probably should take it.
Fallacy five: We don't know enough about what the White
House did, and they won't tell us.
The fact is, we know plenty, and the White House has long
offered to tell us more. The Democrats just don't like what
they hear.
The truth appears to be simple: The White House's
involvement in the Justice Department's review was neither
nefarious nor in-depth. The White House awaited the results of
the process conducted for the attorney general by Kyle Sampson
and others, offered input when asked, and at some point asked
how it was going. Nothing uncovered thus far in any way
indicates anything illegal, unethical or untoward.
This week, our staff once again spent hours--this week, we
spent hours interviewing Kyle Sampson, and he could hardly have
made it clearer that the White House did not meddle in the
dismissal of the U.S. attorneys to seek partisan advantage in
prosecutions. I commend the interview to all Members' immediate
attention and evaluation.
So we don't genuinely need Ms. Miers's information, and we
don't need an executive privilege showdown. I think we know
enough right now to call out the accusations of the White House
wrongdoing for what they are: smoke and mirrors.
There is something we do need. Teetering on the brink of
threat and contempt proceedings, we need the majority to drop
the smokescreen of their accusations and present real, hard
evidence, if they have it. We might get to a showy court
confrontation if we vote for contempt, but we don't win in
court unless we have evidence.
And here I speak as a Member of the House and not as a
partisan. This is of vital importance, I think, to me
personally and to this institution.
As every Member knows, to overcome the presidential
privilege, it is necessary to demonstrate with specificity why
it is likely that the subpoenaed materials contain important
evidence and why this evidence, or equivalent evidence, is not
practically available from another source.
In short, the courts will call on us to show the
information sought is demonstrably critical to the responsible
fulfillment of the Committee's functions.
So I challenge the majority right now to present evidence--
evidence, and only evidence--to the American people and the
minority.
I challenge the majority to cite and produce specific
passages of hearing testimony, interview testimony, or
documents that demonstrate that there remains, in this case, a
critical question that has been left unanswered and can be
answered only by information from Ms. Miers or other White
House sources.
If you can't do that today after 5 months of incessant
investigation, nearing 10,000 pages of documents, a myriad of
interviews and 13 prior hearings, how then can any of us here
in Congress, or out in the public, believe that this
investigation is anything other than a preposterous,
prefabricated, partisan sham?
How can we conclude this controversy is anything other than
a gigantic spin game frittering away the precious time of this
110th Congress, of which we have precious little, to address
the monumental problems confronting the nation?
Spinning is rebuffed at the courthouse door. When the
spinning stops, the courts, having observed the facts, don't
hesitate to say that the emperor has no clothes. If we go to
court, we fear that that will be the result in this case, much
to the embarrassment of the 110th Congress.
It is time for the majority to stop swaggering its power in
this Congress, to clothe itself in prudence and to back off
this pointless constitutional showdown, or provide evidence to
the contrary.
Thank you, Madam Chairman. I yield back.
Ms. Sanchez. The time of the gentleman has expired. Thank
you for your statement.
I would now like to recognize Mr. Conyers, a distinguished
Member of the Subcommittee and the Chairman of the Committee on
the Judiciary. Mr. Conyers?
Mr. Conyers. Thank you, Madam Chair.
This is quite interesting. I will just submit my statement,
because I am still catching my breath after Mr. Cannon's--I
think it was six or maybe more myths that he was propounding.
And we are here today because we issued a subpoena. That is
why we are here. Not that we knew or didn't know that Ms. Miers
was coming or not. She told us she was originally, and then
somehow or someone changed her mind.
So when he asked the majority to submit evidence that would
prove what it is we are looking for, that is what we were
holding the hearing for.
This would have been the very first White House witness to
show up, even though she is an ex-White House witness. I am
just wondering if the White House can call a former employee
and tell them not to show up?
It seems to me that we are proceeding under as reasonable
and modest an approach as we can possibly make. And it is in
that spirit that I congratulate the Subcommittee, majority
Members and minority Members, for being here.
This is important. Are congressional subpoenas to be
honored, or are they optional? And apparently, we have to run
this out--not to prove or assert or with any swagger do
anything unusual; we are still trying to get to the bottom of
this.
Now, if it has already been resolved, then I will be
pleased to look at any documents that make it unnecessary to
hold these hearings.
The Judiciary Committee has more responsibilities than any
other Committee in the Congress. In the first 6 months of the
110th Congress, we passed 37 bills, far more than any other
Judiciary Committee has in the last 12 years.
And so, I am rather proud of our legislative
accomplishments. But there are other things we can do besides
find out if Ms. Miers considers herself subject to the subpoena
process like every other American.
And I return my time. Thank you.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Commercial and Administrative
Law
Today would have marked a significant transition in our continuing
investigation into the U.S. Attorney controversy because, for the first
time, we would have had a White House witness: former White House
Counsel Ms. Harriet Miers.
To date we have received credible evidence relating to potential
obstruction of justice, false statements to Congress, and unlawful
politicization of the Department of Justice, accompanied by the
resignation of nearly a dozen senior officials. Notwithstanding the
strong evidence pointing to the White House's involvement in these
matters, we still have received their same unacceptable ``take it or
leave it'' offer from White House Counsel Fielding. This is one of the
main reasons why this Committee on June 13th had to resort to the step
of subpoenaing Ms. Miers.
Ms. Miers is critically important in furthering our investigation.
During the course of our investigation up to this point, we have
received documents from the Department of Justice detailing Ms. Miers's
involvement in the overall termination process, including, for example:
an e-mail that Kyle Sampson sent in which he
explained that Tim Griffin's appointment was important to Ms.
Miers and Karl Rove; and
e-mails attaching multiple draft firing lists that
were sent to Ms. Miers in the White House Counsel's office as
they were being developed over a two year period.
Despite this obvious evidence of the White House's involvement in
the termination process, the White House has asserted an absolute,
blanket executive privilege, covering documents and the testimony of
witnesses, including Ms. Miers. I am disturbed by this broad assertion
of the privilege. Their assertion of the privilege also is relatively
unprecedented because the privilege historically applies to advice
given directly to the President, and it has been limited to specific
communications only, not broad categories of information as asserted by
this White House.
I was particularly concerned to learn only yesterday of Ms. Miers's
refusal to comply with the Committee's subpoena by failing to appear at
today's hearing, explaining that it was at the direction of the White
House itself. Ms. Sanchez and I faxed a letter to her counsel yesterday
hoping that she would in fact appear, but unfortunately we got a
negative response and I do not see her here this morning. I am
disappointed by this development, especially in light of former White
House advisor Sara Taylor's appearance and testimony yesterday before
the Senate Judiciary Committee. Non-compliance with this subpoena is a
serious matter that will undoubtedly cause us to consider further
actions. It is regrettable that this process has reached this point,
but we are determined to get the truth and uphold the law concerning
this very serious matter.
Ms. Sanchez. I would like to thank the Chair.
Without objection, other Members' opening statements will
be included in the record.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Subcommittee on
Commercial and Administrative Law
Harriet Miers's defiance of a Congressional subpoena based on
direction from the White House has no factual or legal support. As a
lawyer, Ms. Miers should know that the President's claim of executive
privilege in directing her not to even appear, much less testify,
before this Subcommittee is disingenuous and unsupported by precedent.
Ms. Miers is no longer an executive branch official, but a private
citizen who is not free to defy a subpoena to appear and testify before
a Congressional committee. Moreover, during the Clinton Administration,
White House Counsels routinely testified before Congressional
committees in public and under oath as part of congressional
investigations into White House policy decisions. Similarly, other
high-ranking White House officials have testified on the record before
Congress in the past. The Administration's claim of privilege is
overbroad. Ms. Miers and all other relevant White House officials must
comply with Congress's subpoenas.
Ms. Sanchez. And, without objection, the Chair will be
authorized to declare a recess or adjournment of the
proceeding.
Ms. Miers has evidently, as her counsel indicated in his
recent letters, failed to appear today to answer questions and
produce relevant documents in accordance with her obligations
under the subpoena served to her on June 13th.
If she does appear, we will resume our hearing as intended.
But the last word we have from her counsel is that she will
not, and indeed she is not present here. So we will proceed now
on that basis.
According to letters that we have received from her
counsel, her refusal is based on letters she has received from
current White House counsel Fred Fielding asserting related
claims of executive privilege and immunity. Many of these
claims had already been raised and communicated to us
previously.
We have given all these claims careful consideration, and
the Chair is prepared to rule that those claims are not legally
valid and that Ms. Miers is required, pursuant to the subpoena,
to be here now and to produce documents and answer questions.
After I rule, I will entertain a motion to sustain this
ruling, but first, I would like to set forth the grounds for
it. They are as follows.
First, the claims of privilege and immunity are not
properly asserted.
Ms. Miers is no longer an employee of the White House and
is simply relying on a claim of presidential executive
privilege and immunity communicated by the current White House
counsel. No one here is here on behalf of the White House
raising that claim.
In previous cases when a private party, such as Ms. Miers,
has been subpoenaed and the executive branch has objected on
privilege grounds, the private party has respected the subpoena
and the executive branch has been obliged to go to court to
seek to prevent compliance with the subpoena.
We have not even received a statement from the President
himself asserting privilege, even though Chairman Conyers has
asked for one. The courts have stated that a personal assertion
of executive privilege by the President is legally required for
the privilege claim to be valid.
For instance, the Schmults case stated that even a
statement from a White House counsel that he is authorized to
invoke executive privilege is ``wholly insufficient to activate
a formal claim of executive privilege,'' and that such a claim
must be made by the President as head of the agency, the White
House.
Second, we are aware of absolutely no possible proper basis
for Ms. Miers refusing even to appear today as required by the
subpoena. The White House counsel's letter to Ms. Miers's
attorney and her attorney's letters to the Subcommittee fail to
cite a single case in support of the notion that a witness
under Federal subpoena may simply decline to show up at a
hearing.
Indeed, no court decision that we are aware of supports the
White House's astounding claim 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, including the President, is so
above the law that he or she may completely disregarding a
legal directive such as the Committee's subpoena.
And in keeping with this principle, both present and former
White House officials have testified before Congress numerous
times, including incumbent and former White House counsels.
For example, I mentioned earlier that Beth Nolan has told
our Subcommittee that she appeared before congressional
Committees four times on matters directly related to her duties
as White House counsel, three of those times while she was
still serving in that position.
As I also mentioned earlier, a Congressional Research
Service study documents some 74 instances where White House
advisors have testified before Congress since World War II.
Moreover, even the 1999 Office of Legal Counsel opinion
referred to in Mr. Fielding's July 10th letter refers only to
current White House advisors and not to former advisors, and it
acknowledges that the courts might not agree with its
conclusion as to current advisors.
Such Justice Department opinions, including the new one
issued just yesterday to try to support this claim, are not the
law. They state only the executive branch's own view of the law
and have no legal force whatsoever.
It is also noteworthy that both of the Justice Department
opinions relied on by the White House and Ms. Miers fail to
cite a single court case in support of their novel legal
conclusion.
Just yesterday, another former White House advisor, Sara
Taylor, appeared before the Senate Judiciary Committee pursuant
to subpoena and testified about at least some of the relevant
facts in this matter, despite the White House's assertion of
executive privilege.
This White House's asserted right to secrecy goes beyond
even Richard Nixon, who initially refused to allow his White
House counsel, John Dean, to testify before Congress on almost
exactly the same grounds being asserted now, but then agreed
that Mr. Dean and other White House officials could testify.
Third, the White House has failed to demonstrate that the
information we are seeking from Ms. Miers's testimony and
documents, as called for by the subpoena, is covered by
executive privilege. We were not expecting Ms. Miers to reveal
any communications to or from the President himself, which is
the most commonly recognized scope of the presidential
communications privilege.
In fact, as recently as June 28th, a senior White House
official at an authorized background briefing specifically
stated that the President had no personal involvement in
receiving advice about the firing of the U.S. attorneys or in
approving or adjusting the list. Ms. Taylor testified yesterday
that she was not aware of any personal involvement by the
President.
We are seeking information from Ms. Miers and other White
House officials about their own communications and their own
involvement in the process.
The White House claims that executive privilege
nevertheless applies because it also covers documents and
testimony by White House staff who advise the President,
apparently based on the Espy decision.
But the Espy court made clear that its expansion of the
presidential communications privilege applied only when
information is sought in a judicial proceeding, and should not
be read as in any way affecting the scope of the privilege in
the congressional-executive context. And the Espy court also
made clear that the privilege extends only to communications
from or to presidential advisors in the course of preparing
advice for the President.
But the White House has maintained that the President never
received any advice on and was not himself involved in the U.S.
attorney firings. The presidential communications privilege,
even as expanded by the Espy case, simply does not apply here.
Fourth, with respect to our subpoena's request for
documents from Ms. Miers, the courts have required a party
raising a claim of privilege to provide a descriptive, full and
specific itemization of various documents being claimed as
privileged and precise and certain reasons for preserving their
confidentiality. These words are from the Smith v. FTC case and
the Black v. Sheraton case.
Here, no such itemized privilege log has been provided by
Ms. Miers or her counsel. In effect, the White House is telling
Congress and the American people that documents and testimony
are privileged without deigning to explain why. In other words,
the White House is saying simply, ``Trust us. We will decide.''
Fifth, even assuming that the information we have asked for
fell within the scope of a properly asserted executive
privilege, any such privilege is outweighed by the compelling
need for the House and the public to have access to this
information.
As the Supreme Court held in U.S. v. Nixon, claims of
executive privilege are not absolute and depend on a balancing
of the need for privilege versus the need for the information
being sought. Here, the balance clearly weighs against
sustaining any privilege claim.
The privilege claims here are weak. In addition to the
points I have made already, it is important to note that the
claims by the White House are not limited to specific
discussions or documents, but are an attempt at a blanket
prohibition against any documents being provided and any
testimony from present or former aides whatsoever, including
concerning communications with people outside the executive
branch altogether.
And the need for information we seek from the White House
here is very strong. We have tried extensively to obtain
information from other sources, including reviewing thousands
of documents provided by the Justice Department and hearing
testimony or conducting on-the-record interviews with 20
current or former Department of Justice officials.
Yet we still don't know, for example, how or why or by whom
Mr. Iglesias was put on the list to be fired. We still don't
know what actions, if any, were taken by Karl Rove or other
White House officials on the firing of Mr. Iglesias.
Similar questions remain unanswered about the firing of
other U.S. attorneys and about the involvement of White House
officials in the misleading information provided to Congress on
this subject.
Why is this important? For several reasons.
For one, the evidence obtained thus far raises serious
concerns about whether Federal laws have been broken in the
U.S. attorney matter, including laws prohibiting obstruction of
justice, laws like the Hatch Act against retaliating against
Federal employees for improper political reasons, and laws
prohibiting misleading or obstructing Congress.
The courts have made clear that executive privilege is
generally overcome when the information sought concerns
government misconduct. Indeed, the court in the Espy case
stated that when there is any reason to believe government
misconduct occurred, the deliberative process element of
executive privilege disappears altogether.
In addition, obtaining more complete information on what
happened in the U.S. attorney matter may well reveal problems
warranting new legislation by Congress.
This is a well-recognized ground for authorizing Congress
to obtain executive branch information, as the Supreme Court
stated in the case of McGrain v. Daugherty. Indeed, we have
already passed legislation changing the rules for interim
appointments of U.S. attorneys as an outgrowth of our
investigation so far.
The White House claims that Congress's role is limited
because the appointment of U.S. attorneys is done by the
President with the Senate's approval. And that is true;
however, only because of a law passed by Congress itself.
Under the Constitution, both the courts and the Department
itself have recognized that U.S. attorneys are considered
inferior officers, and that rules for their appointment and
removal are not vested in the full discretion of the President
but can be set by Congress, just as we did recently in passing
the law on interim appointments of U.S. attorneys.
Finally, even assuming it is never proven that any laws
were broken here, the evidence already clearly indicates an
abuse of power and legal authority by this Administration in
the U.S. attorneys matter. Investigating and exposing such
abuses is clearly within the oversight authority of Congress
and justifies obtaining the kind of information that we seek.
And the Supreme Court ruled in the Watkins case 50 years
ago, Congress has broad power to investigate the Administration
of existing laws and to expose corruption, inefficiency, or
waste or similar problems within the executive branch.
Regardless of whether laws were broken, it is clearly
important for Congress and for the American people to know, for
example, whether any of these U.S. attorneys were fired because
they refused to bring vote fraud or other cases that
Republicans wanted for partisan reasons, or because they
pursued corruption or other cases against Republicans.
For all the foregoing reasons, I hereby rule that Ms.
Miers's refusal to comply with the subpoena and appear at this
hearing and to answer questions and provide relevant documents
regarding these concerns cannot be properly justified on
executive privilege or related immunity grounds. These reasons
are without prejudice to one another and to any other defects
that may, after further examination, be found to exist in the
asserted privilege.
The Chair would now entertain a motion to uphold the
Chair's ruling regarding Ms. Miers's failure to appear and
recording her failure to answer questions and provide relevant
documents.
Mr. Conyers. Madam Chairperson, so moved.
Ms. Sanchez. Does any Member seek recognition to speak on
the motion?
Mr. Cannon. Madam Chair?
Ms. Sanchez. Mr. Cannon is recognized for 5 minutes to
speak on the motion.
Mr. Cannon. Thank you.
I appreciate the lengthy statement of purpose behind the
motion and have duly noted the many points.
But it seems to me that what this really is going to come
down to, and my major personal concern, is the prerogatives of
the House and where we go, not only in this matter, but as a
body.
Certainly, there are many precedents that you have referred
to, eloquently. But fundamentally, the question here is, is
there a showing of wrongdoing sufficient that the courts are
going to uphold this subpoena? And if we don't have sufficient
evidence that will allow the courts to uphold the subpoena, we
do huge damage to this body.
So, for instance, historically, there is a dearth of court
decisions because the two bodies--that is, the Congress and the
White House, the executive body--have worked and pushed and
shoved back and forth. That has given this body a great deal of
latitude and the ability to get more of what we have wanted.
So, for instance, the White House has offered to have Ms.
Miers testify or be interviewed and allow us to search for
information that might show some criminality that would give
the courts justification for the subpoena that would override
the assertion by the White House of executive privilege.
Not having interviewed Ms. Miers leaves us with some
questions but with no hard evidence of criminality.
So you have the John Dean case, where there was pretty
terrific, obvious, and open and public evidence of criminality,
and the White House was going to lose that battle.
If we pursue a subpoena in the context where we don't have
evidence of criminality and we lose the battle, we then don't
have the stature in the future with any other Administration,
Democratic or Republican, to press our concerns and oversight.
Now, the Chair does know that I have been highly critical
of the minority when we were in the majority because we didn't
do the kind of oversight that I thought we should be doing. I
am terrifically concerned that what we do today is going to
have a monumental effect on our ability as an institution in
the future to do oversight, and that because, unlike the Dean
case or many of the other cases, distinguished from virtually
all the cases that you have mentioned, what we don't have here
is evidence of criminality. And you can't go to the courts
essentially and say, ``We don't know what we don't know.
Therefore, give us a subpoena so we can find out.''
I would like to hear--and I would like to yield the
gentlelady my remaining time, maybe by way of colloquy so we
can discuss this--what is the evidence that we are going to
give the courts that will be compelling for them to rule in the
favor of this body in support of our subpoena?
Ms. Sanchez. If the gentleman is concerned about the
institution of Congress and our ability to continue to conduct
oversight and to have Administrations be responsive to
answering for any of these questions, he would be supporting
the ruling that witnesses cannot simply refuse to appear before
the Subcommittee.
It is unprecedented that they would exert blanket privilege
and say, ``We don't even need to show up.'' I think it is----
Mr. Cannon. Well, let me try and refine the question a
little bit, because I, generally speaking, agree with that
statement.
But here we have the constitutional privilege, which is
clear in the Constitution and in the concept of the separation
of powers. And so, while we have a right to understand, they
have a right to internal discussion.
They, in fact, gave us the opportunity to discuss this with
Harriet Miers. We didn't do that in the context of the offer
made by the White House.
How do we justify to a court that, ``We don't know what we
don't know, and therefore let us have carte blanche,'' when the
White House has a very clear constitutional position that needs
to be overcome with evidence that we provide?
Mr. Conyers. Could my friend yield just briefly?
Mr. Cannon. I yield.
Mr. Conyers. Because I appreciate the tenor of your remarks
and the fact that you are concerned about the House and its
prerogatives being compromised if we move too rashly. I take as
a compliment that you think that we are moving more actively
than previous congresses, in the Judiciary.
Mr. Cannon. That is what I intend, by the way.
Mr. Conyers. You meant that.
Mr. Cannon. I said that complimentarily.
Mr. Conyers. Sincerely, okay.
Ms. Sanchez. The time of the gentleman has expired, and I
would----
Mr. Conyers. Could we give him 2 more minutes?
Ms. Sanchez. I ask unanimous consent.
And, without objection, so ordered.
Mr. Cannon. I continue to yield.
Mr. Conyers. I just wanted to make this simple point
because there will be maybe other discussion.
We can't produce the evidence of misconduct because the
witness won't come. I mean, she might have put our minds to
rest about what we are concerned about.
So far, there have been no White House contacts with us,
and the take-it-or-leave-it offer that you referred to would be
unacceptable to a high school student. I mean, no transcripts,
no oath, no nothing. We could meet in a pub and have
refreshments and do that.
And the final point, of course, is there is no clear,
constitutional prerogative of the White House.
And I thank the gentleman for yielding.
Mr. Cannon. I agree with the gentleman that there is no
clear, constitutional prerogative. But there is a long history
of that prerogative, and my concern is the diminishment of our
power in the context of that prerogative.
But let me just--about the meeting in a pub, the fact that
they have suggested no transcripts does not mean that, if the
witness lies, that she can't be prosecuted. There were no
transcripts of the Scooter Libby discussions, among other
things.
I think the point of the no transcripts was to maintain as
much of the privilege as is possible by the White House and----
Ms. Sanchez. Mr. Cannon, your time has almost expired.
Mr. Cannon. May I just ask the Chair for clarification? On
this motion, is it for an assertion of absolute immunity, or
what are we doing here?
Ms. Sanchez. The motion----
Mr. Cannon. Do we have a written motion?
Ms. Sanchez. The motion rejects the claims of immunity and
executive privilege as a rationale for Ms. Miers not presenting
herself for testimony.
And the time of the gentleman has expired.
Does any other Member----
Mr. Cannon. By way of parliamentary inquiry, does----
Ms. Sanchez. The gentleman will state it.
Mr. Cannon. She has only asserted absolute immunity. Are we
talking about general immunity here or----
Ms. Sanchez. The motion is to sustain the ruling of the
Chair on the claim of executive privilege and immunity.
Mr. Cannon. Is that absolute immunity--on the claim of
absolute immunity?
Ms. Sanchez. Yes.
Mr. Cannon. And nothing else?
Ms. Sanchez. And executive privilege as well. It is all of
the assertions that we have received in the correspondence from
her and White House counsel Mr. Fielding.
Does any other Member----
Mr. Cannon. Pardon me, Madam Chairman. I am still
attempting to clarify this. Is this only as to the assertions
in her letter?
Ms. Sanchez. The assertions in her communications and the
communications from White House counsel Mr. Fielding regarding
her testimony.
Does that clarify? We have the correspondence we can
provide you with.
Mr. Cannon. Yes, I would very much like to have----
Ms. Sanchez. Or you have received it, I am told.
Mr. Cannon. But we want to know which in particular, if
that is----
Ms. Sanchez. All of them. All of the above. Does that
sufficiently answer your inquiry, Mr. Cannon?
Mr. Cannon. This is, of course, a complex issue. We are
just, sort of, considering it on our side for a moment, if you
would just allow a second.
Ms. Sanchez. Wonderful. You may consider, and we will move
to Mr. Cohen, who seeks recognition.
Mr. Cohen is recognized for 5 minutes.
Mr. Cohen. Thank you, Madam Chair.
Mr. Cannon. Thank you, Madam Chair. Let me just--pardon me,
Mr. Cohen. Let me just say that we are satisfied with the
Chair's statements.
Ms. Sanchez. Thank you.
Mr. Cohen, you are recognized for 5 minutes.
Mr. Cohen. Thank you, Madam Chair.
I am indeed only in my first 6 months or so here, and I may
be missing something. But I know in my first 6 months here how
much of a privilege it is to serve in the United States
Congress. This is the highest legislative body in the country
and most significant in the world.
And I can't fathom a private citizen getting a subpoena to
come before this body and not showing up, the idea that we are
all talking about what she might say or what she may not say
and what this issues. And what we have got here is an empty
chair.
I mean, that is as contemptuous as anybody can be of the
government, of the process, of the country, because we
represent the country. And when this Committee issues a
subpoena, people are supposed to come forth. And if they have a
counsel to say that they have a privilege, the counsel is
supposed to assert it. They are not supposed to stay home.
And the President--or the emperor---- [Laughter.]
I know Mr. Cannon wasn't necessarily referring to our
President when he says, ``The emperor has no clothes,'' but one
could not think of anything but the emperor--cannot tell
private citizens to flout the law. And that is apparently what
has happened. And that is wrong.
And I support the Chair in bringing this motion, and I
support the Chair in bringing a contempt citation. Because this
is as contemptuous as you can be of the United States of
America.
We just had our Fourth of July holiday. This is the
greatest country on the face of the Earth, and you don't not
show up. This is a Garry Trudeau cartoon live. We are only
missing the feather. That is what we are looking at. And it is
embarrassing.
You know, Harriet Miers had 18 minutes of tape that she
eliminated. At least after those 18 minutes Harriet Miers was
around. This is, you know, Nixon part two.
It is amazing to me, Madam Chair, that anybody can question
this as a member of this body. This is an affront to each of
us: Republican, Democrat, Libertarian. And I am proud to be a
member of this body, and I resent the fact that this lady is
not here.
Thank you.
Mr. Cannon. Would the gentleman yield?
Mr. Cohen. I yield the balance of my time back to the
Chair.
Ms. Sanchez. Thank you.
Does any other Member seek recognition?
Mr. Keller is recognized for 5 minutes.
Mr. Keller. Thank you, Madam Chairman.
I would like to address three points: the first, the policy
reason for why we have an executive privilege.
We have an executive privilege for the same reason that we
have a husband-wife privilege, that we have an attorney-client
privilege. We want folks to be honest and candid with each
other. That is the best thing for society.
And let me give you an example why that is important in the
context of the White House asserting an executive privilege.
Many of my colleagues on the other side of the aisle
believe that the situation in Iraq is going in the wrong
direction, and some have said that the President is taking us
over a cliff, in their words.
Now, under that scenario, would you prefer to have a
situation in the Oval Office with the President surrounded by a
group of yes men? Or would you like him to have advisors there
who are willing to talk to him truthfully and candidly about
their concerns, even if what they have to say is critical or
contrary to what he believes?
I believe the best thing for the United States is candor,
and that is exactly why we have an executive privilege.
Without the executive privilege, the advisor would be
pretty darn hesitant to say or write anything which is critical
or contrary to what the President believes, because they would
know that it could be used by political opponents in Congress
to score cheap political points.
And, of course, such a tactic would be very helpful to the
opponents to score political points, but it would also be very
hurtful to the institution of the presidency, because it would
chill the ability of the President to get honest and candid
advice.
That is why President Bush's administration has invoked the
executive privilege. It is also why other Democrat
administrations have said the same thing.
In the Clinton administration, Attorney General Janet Reno
wrote, ``Subjecting a senior presidential advisor to the
congressional subpoena power would be akin to requiring the
President himself to appear before Congress on matters relating
to his constitutionally assigned functions.''
In the Carter administration, his assistant attorney
general, John Harmon, wrote, ``The President and his immediate
advisors are absolutely immune from testimonial compulsion by a
congressional committee.''
And William Rehnquist, when he was working in the Nixon
administration wrote, ``The President and his immediate
advisors not only may not be examined with respect to their
official duties, but they may not even be compelled to appear
before a congressional committee.''
Now, what are the legal standards here? Under the
controlling precedent of the U.S. Supreme Court and the D.C.
Court of Appeals, the people seeking this information must
specifically demonstrate, number one, that this evidence is not
available with due diligence through other means; and number
two, that there is a likelihood that the subpoenaed material
will contain important evidence.
This blatantly fails both prongs. First, the information
sought is easily available through other means with due
diligence, because the President has made available Harriet
Miers for an interview. The Democrats have decided not to seek
that information. Second, there is no proof whatsoever that
Harriet Miers likely holds some smoking gun with respect to the
U.S. attorney situation. So, in both cases, both prongs are not
met.
Now, finally, I heard from Chief Justice Sanchez that, ``I
hereby rule that executive privilege does not apply.'' Well, it
is not for her to make that decision. The U.S. Supreme Court is
the ultimate arbiter of the Constitution, and they have already
ruled in U.S. v. Nixon that there is an implied privilege under
Article II of the Constitution for a President to invoke
executive privilege to protect the effectiveness of the
executive decision-making process.
And so I suspect after this controversy resolves in a few
days, we will see a court challenge and we will have the U.S.
Supreme Court rule. And whatever they rule, we will accept it;
they are the ultimate arbiters of the Constitution.
But I firmly believe that the President is acting not just
to protect himself or his Administration, he is acting to
protect the presidency and future Presidents, whatever men and
women may hold that position. And that is why I would oppose
the motion.
I yield back the balance of my time.
Ms. Sanchez. Thank you.
Mr. Johnson is recognized for 5 minutes.
Mr. Johnson. Yes, I move to strike the last word, Madam
Chair.
Ms. Sanchez. The gentleman is recognized.
Mr. Johnson. Madam Chair, I support the motion sustaining
the ruling of the Chair.
Today, the Administration and the Republicans on this
Committee continue to stonewall this Committee's efforts to
investigate the unprecedented en masse firings of almost 10
percent of this country's United States attorneys, which was
done apparently for nefarious reasons.
I don't know what is more stunning: the fact that this
Administration maintains little apparent respect for the rule
of law or that it continues to operate with a willful disregard
for any measure of accountability.
Claiming executive privilege, Harriet Miers--a licensed,
practicing attorney, a former White House counsel and a past
nominee to the United States Supreme Court--has defied a
subpoena. And this impedes our ability as a Committee from
exercising our responsibility to provide oversight by
investigating apparent White House political influence and
interference with the administration of justice by the Bush
Justice Department.
The fact is, we still don't know who orchestrated this
unprecedented decision to fire these attorneys. And for the
Administration to use the executive privilege to cover even the
statements of former White House employees is indeed quite
disturbing.
But after repeated efforts to obtain communications from
the White House and the Republican National Committee, it
should not come to anyone's surprise that this Administration
is simply trying to hide facts.
The Administration is free to fire U.S. attorneys, but it
is not free to obstruct justice, to interfere with corruption
cases or manipulate elections by firing U.S. attorneys.
This contemptuous conduct by witness Harriet Miers cannot
be tolerated. The witness has shown great respect and disregard
for this body by disregarding a lawfully issued subpoena
requiring her to tender documents and offer testimony.
For these reasons, Madam Chair, I support the motion
sustaining the ruling of the Chair.
Mr. Cannon. Would the gentleman yield?
Mr. Johnson. I yield back.
Mr. Cannon. Would the gentleman yield?
Ms. Sanchez. The gentleman has yielded back his time.
I believe anybody----
Mr. Feeney. Yes, Madam Chair?
Ms. Sanchez. Mr. Feeney is recognized for 5 minutes.
Mr. Feeney. Thank you. I move to strike the last word.
And I think it is useful to remind ourselves why we are
here. We are here because of the never-ending saga of Congress
investigating the President's dismissal of political
appointees.
We have forgotten that President Clinton dismissed 100
percent, not 10 percent, 100 percent of his attorney generals,
all 93 of them.
We have forgotten that because we haven't found any
wrongdoing. We are going to continue to investigate until we
create some wrongdoing.
And I am sort of shocked that the Chair is about to rule
and the Committee, apparently a majority, is going to sustain a
ruling that overturns Supreme Court precedents and flies in the
fact, as Congressman Keller pointed out, of every attorney
general who has weighed in on this subject.
There is a presumptive privilege that the President has
that surrounds his immediate advisors. And while Article II
doesn't specifically mention the words ``executive privilege,''
it is an inherent and implied and necessary power for any chief
executive to be able to get candid advice from his advisors
that surround him.
Now, the particular individual that you are trying to get
at today to undermine the executive's critical privilege and
need to get candid advice happened to be his counsel.
Every American citizen has an attorney-client privilege so
that any American can be free to tell candidly the facts to his
or her attorney and get candid advice back. That attorney
cannot be compelled to testify about the advice that he gave
the client; otherwise you would undermine the right to counsel
and representation.
What the Committee is about to rule is that the President
of the United States cannot share the same attorney-client
privilege as any other American has. And you are going to
undermine the entire executive branch's prerogatives and need
to consult with their own counsel on a candid basis.
What lawyer in the White House would be candid with his or
her President if they know that someday, some investigative
committee, in front of T.V. cameras, is going to haul that
lawyer down here and ask every bit of advice that attorney ever
gave to the President of the United States? If I were the
President's attorney, I know that I would be preparing for a
future T.V. show, not helping the President do his job in a
candid manner.
And I find it shocking that, while we have very clear
Supreme Court precedent in this area, communications by the
President and his immediate advisors--I don't know who could be
a more important immediate advisor than the President's
counsel--the President and his immediate advisors'
communications are presumptively privileged.
And as Congressman Keller laid out, the District Court of
Appeals, in ``In Re: Sealed Case,'' has said that to overcome
that privilege, Congress has the burden, and you need to
establish conclusively two things: that the subpoenaed
materials are likely to contain important evidence--there has
no crime been alleged here.
There is no criminal case like the Nixon case, which
established these important privileges. There is no
demonstration that there is any evidence that is going to be
produced by Ms. Miers or anybody else's testimony or documents
from the White House.
The second prong of that test is that you have to
demonstrate that this evidence is not available with due
diligence elsewhere.
The White House has continually offered to provide Ms.
Miers a chance to speak to this Committee on an informal basis,
so that they do not have to invoke executive privilege. They
have gone out of their way to show comity and respect for a
fellow branch of government.
And despite that, we continue to throw rotten tomatoes at
the White House because we do not like the fact that we can't
find a crime or wrongdoing on the part of the dismissal of 10--
or eight U.S. attorneys.
And I will conclude once again by reminding everybody how
we got here. We got here because we are investigating the
dismissals of political appointees. President Clinton dismissed
93 of 93, and there were no investigations, no allegations of
wrongdoing. The President dismissed eight or 10 and we are
still here. And my guess is we will be here in October and
probably March and February of next year.
With that, any additional time I would like to yield to the
Ranking Member, Mr. Cannon.
Mr. Cannon. I thank the gentleman.
In the few moments that remain, let me make just a couple
of points.
In the first place, some very harsh things were said about
Harriet Miers and her contemptuous contempt.
Let me just read from the letter to her by the majority:
``A refusal to appear before the Subcommittee tomorrow could
subject Ms. Miers to contempt proceedings, including, but not
limited to, proceedings under 2 USC Section 194, and the
inherent contempt authority of the House of Representatives.''
In other words, that is a threat that the sergeant in arms
could arrest her while she is here, and that was taken
seriously as a threat.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Cannon. And, with that, I yield back to the gentleman,
who I suspect will yield back to Madam Chair.
Ms. Sanchez. The time of the gentleman has expired.
Ms. Lofgren is recognized for 5 minutes.
Ms. Lofgren. Thank you, Madam Chair. And I support the
motion.
You know, I was just remembering my efforts several decades
ago when I was on the staff of a Member of the Judiciary
Committee during the Nixon impeachment inquiry. And, of course,
Mr. Conyers was then a Member of the Committee. And it reminded
me that Nixon, at one point, famously argued that--I think this
is a quote--``Everything the President does is legal.''
And it appears that this Administration is apparently
adding, ``Everything the President, his advisors and his former
advisors say or do is privileged,'' and that is not the state
of the law.
I was actually prepared to go through a lengthy discourse
on the law, but I think the Chairperson has done that quite
well. I was going to get into a little tiff over the, I
thought, rather snide and belittling comments of our colleague,
calling our Chairperson ``Chief Justice Sanchez.'' But then I
finally decided, you know, that is not bad, because she did
actually pretty adequately cite the law.
This is an important issue. We know that at some point Ms.
Miers suggested firing all 93 U.S. attorneys. We don't really
know how we got from 93 to eight, or I would say nine, counting
Mr. Graves. And that is a mystery.
Here is the problem: You can fire people for any reason,
but you can't fire them for an improper reason.
And the question really is whether the power and authority
of the Department of Justice was used on the basis of purely
partisan reasons, whether the full weight and authority of the
Federal Government to prosecute individuals for crimes or to
use the authority of that department--which we entrust as a
nation with great discretion and believe must be utilized with
tremendous integrity--whether that process was used improperly.
We know from Mr. von Spakovsky's e-mails that there was an
attempt to cut deals with other Federal agencies regarding the
interpretation of Federal voting laws. We think we know that
Mr. Schlozman brought voter fraud prosecutions--well, we do
know that he brought the prosecution right before an election,
then that he was not truthful to the Senate about who directed
him to bring those prosecutions.
There is a shadow over the Department of Justice as a
result of all of this. And the Congress has an obligation to
determine where this concern about misuse of government
authority for partisan purposes leads.
Now, one could assume that Mr. Fielding, acting on the
President's behalf, has claimed complete privilege and
immunity. He asserts that we may learn nothing and that maybe
this whole thing leads farther than Ms. Miers into the White
House. I don't know that we can assume that based only on the
wildly extravagant assertions of privilege that we have
received.
I do know that we would not be discharging our
responsibility today if we were to simply drop this.
We seem to be dealing with the most secretive and least
transparent Administration in recent memory. I never thought in
1973, 1974, that we would be dealing with a President that made
President Nixon look good. But here we are.
We should follow the Nixon precedents, which is what the
Chairperson of the Subcommittee has outlined, and proceed as
she has outlined. And I do support her motion and thank her for
her leadership.
And I yield back.
Ms. Sanchez. Thank you.
Any other Members seek recognition?
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes.
Mr. Franks. Thank you, Madam Chair.
Madam Chair, one of the disadvantages of sitting down here
at the end is that just about everything good has already been
said. And I want to truly associate myself with Mr. Keller's
remarks and Mr. Feeney's remarks. I think that they presented
an incredibly compelling rationale for what we are really here
for.
The fact is that this is not a partisan issue. In 1999, in
an opinion for President Clinton, Janet Reno concluded that the
counsel to the President--the counsel to the President, which
is what Harriet Miers is now--``serves as an immediate advisor
to the President and is therefore immune from compelled
congressional testimony.''
The rationale for immunity was more accurately and more
clearly explained by Theodore Olson in a memo to Deputy
Attorney Schmults in 1982: The rationale for immunity is plain.
The President is the head of one of the independent branches of
the Federal Government. If a congressional Committee could
force the President's appearance, fundamental separation-of-
power principles, including the President's independence and
autonomy from Congress, would be threatened.
As the Office of Legal Counsel has explained, the President
is a separate branch of government. He may not compel
congressmen to appear before him. What if the President tried
to compel one of us to appear at the White House, or maybe just
our chief of staff? That would work great.
As a matter of separation of powers, Congress may not
compel him to appear before it.
Madam Chair, to breach this immunity power of the President
is a recipe for total chaos. And if this Committee goes
forward, there will be a court case, and we will be
embarrassed, and congressional prerogatives will be diminished.
And every time we have asked any of the witnesses here of a
pertinent nature if there was ever any influence from the White
House to fire someone or threaten to fire someone as a U.S.
attorney because of justice issues or because of trying to
affect a particular case, every one of them have stated
categorically no.
And this is just outrageous, and I think that we really
embarrass ourselves today.
And, with that, I am going to go ahead and yield to the
Ranking Member.
Mr. Cannon. I thank the gentleman.
First of all, I would like to ask unanimous consent to
admit into the record a series of documents. One is the July
10, 2007, memo from OLC; the July 10 and July 9 and the June
28, 2007, White House counsel letters; June 27, 2007, acting
Attorney General opinion; a September 16, 1999, Attorney
General opinion; and a February 8, 1979, White House counsel
opinion.
Ms. Sanchez. Without objection, so ordered.
[The information referred to follows:]
ATTACHMENT
Mr. Cannon. Thank you.
You know, today the majority has the votes. We are going to
do what the majority wants to do, I think even as opposed to
the counsel from the minority here.
There has been a lot of over-the-top talk, I think, in this
hearing, calling this Administration Nixon part two or the most
closed, non-transparent Administration in history.
Those kinds of comparisons are not going to help us make
the case in court. The case is going to have to be made on
evidence. Despite the characterizations of both sides, the
minority and the majority, the courts are going to decide this
based upon the evidence. And that is going to require evidence
of criminality.
Not having evidence because Harriet Miers doesn't appear
after having been threatened with arrest is not going to be the
basis for the issuance of a subpoena. I would hope that the
majority would reconsider.
That being the case, I hope they have a plan for mitigating
the effect of going to court and having a decision that
significantly limits what we are doing.
And finally, let me just point out that you could have
asked Ms. Miers all the questions--can I have order, Madam
Chair?
We could have asked Ms. Miers questions if we just agreed
to have her come voluntarily, and then all of the things that
we are saying we don't know, we could have at least known what
her position was, her position that would have been subjected
to criminality if she had lied, and been able to make decisions
based on that.
The refusal to meet with her and ask questions, combined
with the absolutely clear answers that we have had from Kyle
Sampson, who, as recently as this week, was asked all these
questions with great particularity--and we had very clear
answers that the White House was not involved in, that Harriet
Miers was not involved--those are going to be the basis for not
having a court support the position that the majority is now
proposing.
Ms. Sanchez. Time of the gentleman has expired.
Mr. Cannon. And I urge opposition to the motion.
Thank you, Madam Chair, and I yield back.
Ms. Sanchez. The gentleman from North Carolina, Mr. Watt,
is recognized for 5 minutes.
Mr. Watt. Thank you, Madam Chair.
And the Chairman of the full Committee has asked that I
yield to him briefly, and I will do so.
Mr. Conyers. Thank you so much, Mel.
First of all, I wanted to commend the Subcommittee on its
judicial and thoughtful approach in evaluating this matter, and
I commend both the Democrats and the Republicans.
The other thing that must go on the record: Ladies and
gentlemen, if we do not enforce this subpoena, no one will ever
have to come before the Judiciary Committee again.
And I thank the gentleman for yielding.
Mr. Watt. I thank the gentleman for his comments.
Mr. Feeney. Would the gentleman yield to me for a brief
question for my respected Chairman?
Ms. Sanchez. The time belongs to Mr. Watt.
Mr. Watt. I am happy to yield to Mr. Feeney.
Mr. Feeney. I thank you. And I will be brief.
Mr. Chairman, I have the greatest respect for you, but I
don't recall the last witness who had a letter from the
President of the United States reminding that witness that she
had been his chief counsel and that she was instructing her as
his prerogative, with executive privilege, not to appear in
front of this Committee.
If the Chairman thinks that is going to be a regular
occurrence, I would have concern about undermining this. But I
don't believe that is going to happen every day, and I don't
recall it has every happened before.
Mr. Conyers. It happened yesterday in the Senate Judiciary
Committee. [Laughter.]
Ms. Sanchez. The time belongs to Mr. Watt.
Mr. Watt. I thank all the Members for their respective
interventions on my time. And if that necessitates me seeking
additional time at the end, I hope they will be as generous
with me.
Let me just say, Madam Chair, that I rise in support of the
motion that has been made to sustain your ruling. And I adopt
in its entirety the Chair's statement of reasons that the
ruling that she made is justified.
I have tried to be as balanced in this process as I could.
As I indicated to Mr. Cannon in a previous hearing, I started
with the presumption that the President has the prerogative,
the authority, to hire and fire attorneys general and that I
suspected, at the outset of these hearings, that we were going
nowhere fast.
But as we have peeled back layer after layer after layer,
my suspicions have not been validated. They have been aroused,
and I have become more and more and more suspicious. And this
last shoe that dropped yesterday, the refusal to allow Ms.
Miers to appear here today, even to assert her claimed
privilege, or the President's claimed privilege, is kind of the
last insult.
Representative Scott and I sat through the last impeachment
process, and in the middle of that impeachment process we made
a pact that we would always apply the same standards to
Democratic and Republican Presidents alike because we have a
constitutional responsibility as Members of this Committee.
I take seriously the presumptive privilege that the
President has. But I think this President has abused that
presumptive privilege, and the American people now recognize
that they don't presume that his privilege extends nearly as
far as the President asserts that it extends.
I don't believe that he is entitled to that continuing
presumption without question----
Ms. Sanchez. The time of the gentleman has expired.
Mr. Cannon. May I ask unanimous consent that the gentleman
be granted an additional 2 minutes?
Ms. Sanchez. Without objection.
Mr. Watt. I ask unanimous consent that I be granted an
additional 3 minutes, which is what was taken from me at the
outset.
Ms. Sanchez. Is there any objection?
Without objection, so ordered.
You may continue, Mr. Watt.
Mr. Watt. I can't give him that presumption anymore because
this is the same President who told me that he was going to be
a different kind of President, and reneged on that promise.
This is the same President who has relied on Cheney, the
Vice President, who, on his behalf, I presume he is claiming
this privilege also but who has now taken the position that he
is not part of the executive branch.
He is the same President who lied to Congress and to the
American people about the reasons for going to war; the
President who has jailed and put people in jail without even
bringing any charges against them and rendered them to other
countries for questioning.
He is the same President that exposed the CIA agents by
revealing their identity and then turned around and pardoned
the person who lied about whether he had justification for
doing that, or his reasons for doing that.
He is the same President who declared victory on an
aircraft carrier 5 years ago and has us still in the middle of
a war.
This is a President who I have trouble giving any
presumptions to anymore. And I believe the American people are
having trouble giving him any presumptions anymore.
I cannot accept the standards that prevailed for the last 6
years of oversight of this President. We have a responsibility
to oversee the conduct of this President. And the President is
sticking his thumb in our eye and saying, ``I have some
privilege or--''
Mr. Cannon. Madam Chair, I have sat here trying not to
respond, but I believe the gentleman's words are
unparliamentary. He has called the President a liar. He has
talked about the President sticking his thumb in the eye of
people. I believe that is unparliamentary language and ask that
his words be taken down.
Ms. Sanchez. I will allow the gentleman to proceed, but I
would remind all Members to please proceed in a manner
befitting of the decorum of this Committee.
And, Mr. Watt, you may conclude with the remainder of your
time.
Mr. Watt. I think I will just yield back the balance of my
time. [Laughter.]
I think the American people know what we are dealing with
here: an imperial President who thinks he is above the law. And
we have a responsibility to say to the American people and to
this President----
Mr. Cannon. I reluctantly----
Mr. Watt [continuing]. That he is not above the law----
Mr. Cannon. But, Madam Chair, these are unparliamentary
words.
Mr. Watt. These are not unparliamentary words.
Mr. Cannon. They are.
Mr. Watt. These are----
Ms. Sanchez. The Committee will be in order.
Mr. Cannon, you are recognized.
Mr. Cannon. The gentleman has--my friend and colleague and
a person whom I admire greatly, I am reluctant to do this, but
we have rules of decorum in Congress, and the gentleman has
gone beyond what those rules allow several times.
And the relevant rule is, ``A member may refer to political
motives of the President in debate. However, personal
criticism, innuendo, ridicule or terms of opprobrium are not in
order.''
The gentleman's words are clearly out of order, and I ask
the Chair that his words be taken down.
Ms. Sanchez. The Chair believes that the words of the
gentleman, although harsh, were not unparliamentary. And since
he has graciously yielded back the balance of his time, your
objection will be noted for the record.
Does any other Member who has not yet spoken wish to be
recognized?
Mr. Cannon. Madam Chair, I insist that the gentleman's
words be taken down----
Ms. Sanchez. The ruling of the Chair----
Mr. Cannon [continuing]. And struck from the record.
Ms. Sanchez. The ruling of the Chair is that the words were
not parliamentary----
Mr. Cannon. They weren't parliamentary; I agree with the
Chair.
Ms. Sanchez. Pardon me. The ruling of the Chair--let me
restate that--were not unparliamentary.
Mr. Cannon. Madam Chair, I appeal the ruling.
Ms. Lofgren. I move to lay on the table the motion to
appeal the ruling of the Chair.
Ms. Sanchez. The measure to appeal the Chair's ruling has
been--a motion to table the appeal of the ruling of the Chair
has been made.
The question is on the motion to table.
All those in favor will say, ``Aye.''
Those opposed?
In the opinion of the Chair, the ayes have it.
Mr. Cannon. On that, I asked a recorded vote.
Ms. Sanchez. A recorded vote is requested. The clerk will
report the roll.
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Johnson?
Mr. Johnson. Aye.
The Clerk. Mr. Johnson votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt votes aye.
Mr. Watt?
Mr. Watt. Pass.
The Clerk. Mr. Watt passes.
Mr. Cohen?
Mr. Cohen. Aye.
The Clerk. Mr. Cohen votes aye.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon votes no.
Mr. Jordan?
Mr. Jordan. No.
The Clerk. Mr. Jordan votes no.
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller votes no.
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney votes no.
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks votes no.
Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez votes aye.
Ms. Sanchez. Are there any other Members who wish to vote?
The clerk will report the roll.
The Clerk. Madam Chair, six Members voted aye, five Members
voted nay.
Ms. Sanchez. The motion to table the--to overrule the
ruling of the Chair is tabled.
There being no more----
Mr. Cannon. Madam Chair, may I just ask unanimous consent
to admit to the record three items: two letters from Jones Day,
one dated July 10, 2007, one July 11, and one to Mr. George
Manning, I believe from the majority Chair of the Committee and
the Subcommittee.
I thank you.
Ms. Sanchez. Without objection, so ordered.
[The information referred to follows:]
Ms. Sanchez. A quorum being present, the question is on the
motion to sustain the Chair's ruling.
All those in favor will signify by saying, ``Aye.''
Those opposed?
In the opinion of the Chair, the ayes have it.
Mr. Cannon. May I have a recorded vote on that, Madam
Chair?
Ms. Sanchez. A roll-call vote is requested. As your name is
called, please, all those in favor will signify by saying,
``Aye,'' and all those opposed, ``No.''
The clerk will call the roll.
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Johnson?
Mr. Johnson. Aye.
The Clerk. Mr. Johnson votes aye.
Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt votes aye.
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt votes aye.
Mr. Cohen?
Mr. Cohen. Aye.
The Clerk. Mr. Cohen votes aye.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon votes no.
Mr. Jordan?
Mr. Jordan. No.
The Clerk. Mr. Jordan votes no.
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller votes no.
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney votes no.
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks votes no.
Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez votes aye.
Ms. Sanchez. The clerk will report the roll.
The Clerk. Madam Chair, seven Members voted aye, five
Members voted nay.
Ms. Sanchez. A majority having voted in favor, the motion
is agreed to.
Without objection, the record will remain open for a
minimum of 5 legislative days for the submission of additional
materials.
Thank you. This Subcommittee and full Committee will take
under advisement what next steps are warranted. That concludes
our hearing.
[Whereupon, at 11:24 a.m., the Subcommittee was adjourned.]