RENEE MONTAGNE, host:
Former White House Counsel Harriet Miers was scheduled to appear today before the House Judiciary Committee to answer questions about the firings of federal prosecutors late last year.
Earlier this week, President Bush invoked executive privilege to prevent her answering questions. And now the president has upped the ante, ordering Miers not to appear at all.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The White House, in a letter from Counsel Fred Fielding, informed Miers that as former senior adviser to the president she could not be compelled to testify or even to appear before the committee. The letter cites a 1999 opinion from the Justice Department in which the Clinton administration contended that a president's top advisers could not be compelled to testify with respect to clemency decisions because those decisions stem from the president's pardoning power, an exclusive presidential function under the Constitution, and one that is not subject to congressional oversight since it's not an area in which Congress can legislate.
Not surprisingly, Congress draws a clear distinction between an investigation into presidential clemency decisions and an investigation into charges that the president interfered with the criminal justice system by firing prosecutors who would not do the partisan bidding of Republican Party activists and office holders.
House Judiciary Committee Chairman John Conyers, in his own letter, said that Miers' failure to appear could subject her to criminal prosecution for contempt of Congress. We are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to appear in response to a congressional subpoena. To the contrary, said Conyers, the courts have made clear that no present or former government official, even the president, is above the law and may completely disregard a legal directive such as a committee subpoena.
The latest clash occurred just hours after former White House Political Director Sara Taylor appeared before the Senate Judiciary Committee. Although she initially declined to answer questions about her role in the firings, citing the president's executive privilege order, she did eventually.
Here she is in an exchange with Committee Chairman Patrick Leahy in the opening moments of the hearing.
Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): Did you attend any meeting with the president since the 2004 election in which the removal or replacement of U.S. attorneys were discussed?
Ms. SARA TAYLOR (Former White House Political Director): Again, I have a letter that has asked me to follow the president's assertion of executive privilege.
Sen. LEAHY: So you're not going to answer my question?
TOTENBERG: Less than two hours later, the question was the same but the answer wasn't.
Sen. LEAHY: Did you attend any meeting with the president since the 2004 election in which the removal and replacement of U.S. attorneys was discussed?
Ms. TAYLOR: I did not attend any meetings with the president where that matter was discussed.
TOTENBERG: But Taylor refused to say whether she had discussed the firings with the president's top political adviser, Karl Rove.
By the end of the hearing, Taylor had invoked executive privilege so erratically and answered so many questions, sometimes in such contradictory ways, that the lone Republican senator to ask questions, Arlen Specter, said Taylor may well have waived the privilege she sought to honor.
Senator ARLEN SPECTER (Republican, Pennsylvania): You might have been on safer legal ground if you had said absolutely nothing.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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