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HJC Hearing Heating Up: Miers Fails To Show

mierscheer_0.jpgFrom the HJC:

Sanchez now saying that Miers has not appeared, that her counsel says that she will not appear via letters from Fielding asserting related claims of executive privilege.

Chair prepared to rule that the claims are not legally valid.  And that Miers should be there to testify.  Miers is no longer an employee at the WH, that Miers is relying on an invalid claim of privilege, and Miers is failing to respect the subpoena in contrast to prior precedents from other witnesses.

The President himself has not asserted the privilege — claim through counsel is not valid.

There is no possible, proper basis for refusal to appear today.  There is no citation of a single case in Miers’ correspondence that she did not have to show today in response to Congressional subpoena.  No official, including the President, is so above the law that they do not have to comply with a subpoena. 

Sanchez goes through WH advisors testimony from CRS information — number of former and current advisors have testified numerous times, including during the current Bush Administration.

The DOJ opinions on which the WH and Miers rely fail to cite a single court precedent to support their novel conclusions on assertion of executive privilege. 

As recently as a few weeks ago, WH staff said that the President had no involvement in briefings about the USAtty firings.  Cites Taylor testimony yesterday that she had no knowledge of the President’s involvement in this either.  Nevertheless, the President is asserting privlege, but with no underlying basis for said assertion.

Goes through Espy exceptions.  Presidential exceptions privilege under Espy simply does not apply here.

There is no descriptive and precise detailing of specific documents and why they are deemed privileged. (Smith v. FTC and Sheridan v. ______)

As in US v. Nixon, claims of privilege are not absolute.  Here, the balance clearly weighs against a claim of privilege.  Claims byt he WH are not related to specifics, but are instead a blanket prohibition to prevent any and all documents or testimony from anyone in the executive branch.  We have tried to get information from other sources — including getting documents and testimony from more than 20 current and former DOJ employees — but questions remain unanswered that can only be answered by people at the WH.

The evidence obtained thus far raises serious questions about obstruction of justice, Hatch Act violations and laws against misleading or obstructiong a Congressional investigation.  Where there is any reason to suspect that misconduct as occurred, the executive privilege question disappear altogether.  (Espy.)

The evidence already indicates an abuse of authority of the President in the USAtty matter.  As the Watkins case ruling aid, Congress clearly has the authority and the obligation to expose wrongdoing and corruption in the executive branch.

Rules that Miers refusal to appear and refusal to provide documents cannot be sustained under her assertion of executive privilege as put forward by the WH and Miers.

Cannon now arguing on whether there is sufficient evidence of wrongdoing to allow courts to uphold the subpoena.  Admits that Sanchez has put forward substantial precedent with regard to Congressional right to testimony under the subpoena.  Trying to find the loophole to not require subpoena enforcement now.  Cannon asks what supporting information they have for wrongdoing.

Sanchez says if Cannon wants to support Congressional ability to do oversight, then he would understand that Congressional subpoenas must be enforced.  Cannon now digging in and asking for justification on an underlying question of wrongdoing which must be overcome with evidence that Congress must provide in order to enforce subpoena.

Conyers steps in to say that he appreciates that Cannon is pleased that the Dems are moving forward on more oversight than the prior GOP-controlled Congress did.   Cannon says that he’s concerned about the “diminishment” of the power of Congress to provide oversight in the future if the foundation for wrongdoing is not laid in an attempt to enforce the subpoena. 

Sanchez clarifies that the motion rejects the assertion of executive privilege and absolute immunity as asserted by the WH and Miers — all of the assertions that the committee has received from Miers’ counsel and Fielding. 

Rep. Cohen Statement:  Happy to be serving in Congress, and takes it seriously.  Appalled with how contemptuous Miers is for not showing up on subpoena — what we have is an empty chair.  (CHS notes:  good visual with the little Mrs. Miers placard and an empty chair behind it.)   It is amazing that any member could question the need to enforce a subpoena, this is an affront to this body, whatever your political affiliation.

Rep. Keller Statement:  Goes into context of privilege — want people to be honest with each other and candid.  Want President’s advisors to be honest with him on how badly things are going in Iraq.  (CHS notes:  well, there’s a first from Keller.)  Says that members of Congress would use this information to score cheap political points (CHS notes:  because, heaven forbid, the American public would find out that the President had been hearing criticism in his bubble).  Says under controlling precedent that the evidence is not available with due diligence from other means and that the information sought provides needed information — Keller says that both prongs are not met.  Keller says that Sanchez doesn’t get to make that ruling — and that the Nixon case allows for executive privilege (CHS notes:  Keller conveniently fails to mention the fact that the Nixon case also ruled that the President cannot use privilege to shield himself from valid investigation into potential wrongdoing.)

Rep. Johnson Statement:  I don’t know what is more stunning:  that this Administration continues to flout the rule of law, or that they are so disrespectful to Congress.  Harriet Miers, a practicing attorney and former WH counsel, has defied a Congressional subpoena.  The Administration is free to fire USAttys, but they are not free to obstruct justice or influence cases inappropriately for political reasons by firing them — and the Miers disregard of the Congressional subpoena is appalling.  Johnson says that he supports the ruling of the chairwoman.

Rep. Feeney Statement:  Congress investigating president is bad.  blah blah blah  Clinton did it, too.  (CHS notes:  jeebus, it’s the inaccurate talking point that will not die.  Reagan, Bush I and Clinton, as well as Bush II all replaced the vast majority fo their USAttys within the first 6 months of their tenure in office.  Replacing a large number of USAttys after that time is the unusual part of this.)  blah blah blah  No one will be candid with the President if people are expected to be held accountable for what they say.  blah blah blah

Cannon now asking for all of the docs from the WH, the DOJ, and Miers and others into the record.  Cannon says that today the majority has the votes.  And then says that there has been a lot of “over the top” talk.  (CHS notes:  pot, this is kettle…)  Cannon says that there is no evidence of criminality — hopes that the majority has a plan to mitigate the effect of not producing this evidence.  blah blah blah  Kyle Sampson’s testimony ought to have cleared the WH entirely.

Rep. Watt Statement:  Yields to Conyers.

Rep. Conyers:  Commends subcommittee on its judicial and thoughtful approach to this.  If we do not enforce this subpoena, no one will ever have to come before the Judiciary again.

Feeney now saying that a letter from the President to his chief counsel instructing her to cover his behind ought to be respected.  Conyers says that Feeney shoudl see yesterday’s proceedings wher Taylor showed up with such a letter in hand and still honored the subpoena.

Rep. Watt:  Adopts the chair’s statement of jutifications on the ruling in this.

Am going to start a fresh thread.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com