Miers Attorney Tells House Committee She Will Not Attend

Harriet Miers’ attorney has told the House Judiciary Committee that she will not appear for her scheduled hearing tomorrow — taking a much different tack from that taken by Sara Taylor today.

In his letter to the committee sent last night, Miers’ attorney George Manning referred back to his letter sent Monday, in which he said that “Ms. Miers has no choice other than to comply with direction given her by Counsel to the president.”

As Marty Lederman lays out here, the president’s assertion of executive privilege is not legally binding — but the committee’s subpoena is. Miers could defy the president’s direction (such as it is), or take the approach Taylor chose and refuse to answer certain questions.

Chairman Conyers responded in a letter to Manning:

“A congressional subpoena, such as the one issued to Ms. Miers, carries with it two obligations: the obligation to appear, and the obligation to testify and/or produce documents. Even if a witness intends to assert privilege in response to a subpoena, that intention to assert privilege does not obviate the obligation to appear….

A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.

We are prepared at the hearing tomorrow to consider and rule on any specific assertions of privilege in response to specific questions. We strongly urge you to reconsider, and to advise your client to appear before the Subcommittee tomorrow pursuant to her legal obligations.

The committee will meet tomorrow morning, regardless of whether Miers shows.