TPM Reader AB thinks the White House needs to keep Miers from even showing up …
I just read about the order to Miers not to attend the hearing. Bush may not order her to stay away but he can protect the attorney-client privileged information she may have, if any. She must at least show up and assert the privilege. Were she to divulge any of the client’s secrets, she could lose her law license. But she cannot just skip the hearing.
I suspect that the White House fears that a lot of what she knows is not protected by the privilege. For example, if a third person is present, communications between a client and her attorney are not privileged. Just as Taylor today testified about some matters not covered by the White House’s claim of executive privilege, so would Miers have to testify about non-privileged information she had, presumably a lot more that Taylor had.
At a certain point it just becomes plain old obstruction.
Late Update: TPM Reader JVW dissents on one point, and I seem to remember he’s right on this …
I’m not certain, but I believe that the White House Counsel does not enjoy privilege with regard to communications with the President. It’s not a regular attorney/client relationship. In fact, Clinton’s WHC had to file a motion with the Supreme Court asking for the privilege to be extended to the President/WHC relationship after lower courts had ruled that no privilege obtains. Look up In re Lindsey. I do not believe that it has been overruled. Also relevant, Hilary Clinton spoke to a personal lawyer in the presence of a WHC and the 8th Circuit ruled that the WHC was a third party for purposes of negating the privilege. See In re Grand Jury Subpeonas Duces Tecum. So maybe that’s the problem for the President. Executive privilege wouldn’t preclude testimony about when and where and in whose company Miers spoke to the President, only the content of those conversations. She might have been, as WHC, a third party present at an otherwise privileged conversation setting legal strategy. But to be honest, I think the Administration is just asserting privilege for privilege’s sake in an attempt to thwart the will of Congress by any means necessary.
