more goodness from chairman conyers:
July 13, 2007
BY FAX AND U.S. MAIL
Mr. George T. Manning
1420 Peachtree Street N.E. Suite 800
Atlanta, GA 30309-3053
Dear Mr. Manning:
We were very disappointed that your client Harriet Miers disobeyed the subpoena served on her and did not even appear–much less testify or produce documents as required–before the Subcommittee on Commercial and Administrative Law at 10 a.m. yesterday, July 12, 2007. Enclosed with this letter is a copy of the text of the ruling by Chairwoman Sánchez at yesterday’s hearing, rejecting the claims of immunity and privilege as legally invalid, and stating that
Ms. Miers is required pursuant to the subpoena to appear in order to testify and produce documents. As the ruling explains, as a private party, Ms. Miers could not legally be compelled by the White House to disregard the subpoena, but instead made her own decision to disregard it and to cite Mr. Fielding’s letter.
Federal law makes it very clear that recipients of a congressional subpoena must appear– regardless of whether or not they intend to assert privilege once they arrive. 2 U.S.C. § 192 provides: “Every person who having been summoned as a witness by the authority of either House of Congress . . . willfully makes default, or who, having appeared, refuses to answer any question . . . shall be guilty of a misdemeanor . . . .” 2 U.S.C. § 194 further states that a witness may be held in contempt and prosecuted for three distinct acts: 1) failing “to appear to testify” in response to a subpoena; 2) failing to produce documents pursuant to the subpoena; and 3) failing to answer questions pursuant to the subpoena.
The D.C. Circuit has ruled that “[a] reasonable interpretation of the statute . . . is that a witness is in default if he fails not only to appear but fails to attend, following appearance, so long as the committee requires his attendance.” Townsend v. United States, 95 F.2d 352, 357 (D.C. Cir. 1938). The Second Circuit has similarly stated: “The statute, 2 U.S.C.A. § 192, embraces two offenses. . . . The first consists of the willfull default of one who has been summoned as a witness. This offense, obviously, may be committed by willfully refraining, without adequate excuse, from appearing in response to a lawful summons and it may also be committed by appearing and then willfully terminating attendance before being excused.” United States v. Josephson, 165 F.2d 82, 85 (2d Cir. 1947) (citing Townsend, 95 F.2d 352). See also United States v. Groves, 18 F.Supp. 3 (W.D. Penn. 1937); United States v. Hintz, 193 F.Supp. 325 (N.D. Ill. 1961).
This letter is to formally notify you that we must insist on compliance with the subpoena, and that your client’s failure to promptly mitigate her noncompliance could subject her to contempt proceedings, including but not limited to proceedings under 2 U.S.C. §§ 192, 194 and under the inherent contempt authority of the House of Representatives. In light of Chairwoman Sánchez’s ruling, we strongly urge Ms. Miers to appear before the Subcommittee pursuant to her subpoena. Please let me know in writing by 5 p.m. this Tuesday, July 17, whether Ms. Miers will comply with the subpoena. If I do not hear from you in the affirmative by then, the Committee will have no choice but to consider appropriate recourse.
With respect to the subpoena’s directive that Ms. Miers produce documents, we realize it is possible that Ms. Miers in fact does not possess documents responsive to the subpoena. If that is the case, please notify us of that as well by July 17, in which event that issue can hopefully be resolved.