Harriet Miers’ testimony in US Attorney firings spotlights again why she is unfit to practice law.

It took two (2) years and a judicial scolding by United States District Judge John D. Bates, but Harriet Miers’ has finally testified in the U.S. Attorney firing investigations:

In a low-key session on Capitol Hill, former White House Counsel Harriet Miers was deposed Monday by House Judiciary Committee staffers probing the alleged politicization of the Bush Justice Department.

Miers testified, behind closed doors, after months of wrangling between Congress and former members of the Bush administration.

But just as the thief is not absolved from the crime of theft even if he returns the stolen property, Harriet Miers is not absolved of her prior unethical conduct just because she has now testified.  To the contrary, her testimony this week serves to again expose her unethical conduct which demonstrates that she is unfit to practice law.

These excerpts from the Memorandum to the Members of the Committee on the Judiciary from Rep. John C. Conyers, Jr., Chairman, dated July 24, 2007, are just as true today as they were when I first wrote about Harriet Miers back in October of 2007:

Even more extraordinary than the executive privilege claims in this matter is the assertion that Ms. Miers, a former White House official not currently employed by the federal government, is absolutely immune from even appearing before the Subcommittee as directed by subpoena. The Supreme Court has specifically held that even a President, while serving in that capacity, can be subpoena by a court and can be required to participate in a civil lawsuit for damages by a private party. [FN 281] The Court’s holding in Jones flies in the face of the claim that a former White House official is somehow immune from even appearing in response to a Congressional subpoena. As with Sara Taylor, who received a subpoena similar to Ms. Miers’ but chose to appear and answer some questions before the Senate Judiciary Committee, no one can doubt that Ms. Miers would have been asked some questions that would not have fallen within even the broadest assertion of executive privilege, but Ms. Miers simply refused to attend her hearing altogether. Id.

[…]

[T]here is an additional reason that Ms. Miers’ claims concerning executive privilege were and should be rejected. When a private party like Ms. Miers is subject to a subpoena, it is improper for the subpoenaed person simply to refuse to … testify based on an assertion of privilege by a third party, in this case, the White House. … To the extent that the White House objected to the subpoena to Ms. Miers as a private citizen, therefore, its proper recourse – which would have been more than adequate to protect its own asserted rights – would have been to seek a court order, rather than unilaterally “directing” Ms. Miers to disobey a lawful subpoena herself. Id. at page 46.

[…]

[M]s. Miers was not being misled by a government entity into thinking she was acting lawfully, but instead she chose, with full knowledge of the possible consequences, to follow the White House’s flawed “directive.” As the entity which issued the subpoena to Ms. Miers, only the Committee was in a position to give her “reasonable reliance” that she could lawfully refuse to comply, but in fact the Committee did precisely the opposite and made clear that she was required to obey her subpoena. Id. at page 48. (emphasis in original)

[…]

As explained in the July 12 and July 19 rulings upheld by the Subcommittee on Commercial and Administrative Law, the refusal … of Ms. Miers to testify or even appear pursuant to subpoena [has] no proper legal basis. Id. at page 52. FN 281 See Clinton v. Jones, 520 U.S. 681, 703-06 (1997). As the Court noted in United States v. Bryan, 339 U.S. 323-331 (1950), “persons summoned as witnesses have certain minimum duties and obligations which as necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. …We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.”

In the ensuing litigation, United States District Judge John D. Bates was was also not impressed with Harriet Miers’ excuses for defying lawful, Congressional subpoenas.  [I have adapted the following discussion of Judge Bates’ Opinion from this post I wrote in July of 2008.]  In this Memorandum Opinion issued in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB), Judge Bates introduced Ms. Miers’ legal position by stating that it was unprecedented, was without any support in the case law and was fallacious:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Id. at p. 3.

Because Ms. Miers presented no legitimate claim for absolute immunity, Judge Bates ruled that Ms. Miers must, in fact, appear pursuant to the validly issued subpoenas of the United States House and Senate Committees on the Judiciary:

Clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process. Ms. Miers is not excused from compliance with the Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be  made.

Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate. [Footnote] 38 [is not included herein] And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177.

Id. at p. 91.

Judge Bates also addressed Ms. Miers’ claim of absolute immunity, which provided the basis for her refusal to even appear before the House and Senate Committees on the Judiciary:

The Executive maintains that absolute immunity shields Ms. Miers from compelled testimony before Congress. Although the exact reach of this proposed doctrine is not clear, the Executive insists that it applies only to “a very small cadre of senior advisors.” See Tr. at 96. The argument starts with the assertion that the President himself is absolutely immune from compelled congressional testimony. There is no case that stands for that exact proposition, but the Executive maintains that the conclusion flows logically from Nixon v. Fitzgerald, 457 U.S. 731 (1982), where the Supreme Court held that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. “Any such [congressional] power of compulsion over the President,” the Executive asserts, “would obviously threaten his independence and autonomy from Congress in violation of separation of powers principles.” See Defs.’ Reply at 40. The Executive then contends that “[those] same principles apply just as clearly to the President’s closest advisers.” Id. Because senior White House advisers “have no operational authority over government agencies . . . [t]heir sole function is to advise and assist the President in the exercise of his duties.” Id. at 41. Therefore, they must be regarded as the President’s “alter ego.” In a similar context, the Supreme Court has extended Speech or Debate Clause immunity to legislative aides who work closely with Members of Congress. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Accordingly, forcing close presidential advisors to testify before Congress would be tantamount to compelling the President himself to do so, a plainly untenable result in the Executive’s view. Indeed, as the Executive would have it, “[w]ere the President’s closest advisers subject to compelled testimony there would be no end to the demands that effectively could be placed upon the President himself.” See Defs.’ Reply at 43.

Unfortunately for the Executive, this line of argument has been virtually foreclosed by the Supreme Court. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the plaintiff sued “senior White House aides” for civil damages arising out of the defendants’ official actions. Id. at 802. The defendants argued that they were “entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.” Id. at 808. The Supreme Court rejected that
position. Notwithstanding the absolute immunity extended to legislators, judges, prosecutors, and the President himself, the Court emphasized that “[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm.” Id. at 807. Although there can be no doubt regarding “the importance to the President of loyal and efficient subordinates in executing his duties of office, . . . these factors, alone, [are] insufficient to justify absolute immunity.” Id. at 808-09 (discussing Butz v. Economou, 438 U.S. 478 (1978)).

Id. at pp. 79-80.

Judge Bates continued to decimate Ms. Miers’ claim of absolute immunity:

There is nothing left to the Executive’s primary argument in light of Harlow. This case, of course, does not involve national security or foreign policy, and the Executive does not invoke that mantra. The derivative, “alter ego” immunity that the Executive requests here due to Ms. Miers’s and Mr. Bolten’s close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here. Indeed, the Executive asks this Court to recognize precisely the type of blanket derivative absolute immunity that the Supreme Court declined to acknowledge in Harlow.

Id. at pp. 81-82.

Judge Bates also expressly pointed out that there is NO judicial precedent for Ms. Miers’ claims:

Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress to testify and assert executive privilege where appropriate. Still, it is noteworthy that in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record also does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears. [Emphasis in original.]

Id. at pp. 83-84.

And that Ms. Miers’ claims are based solely on two (2) legal opinions issued by the Executive Branch itself:

Tellingly, the only authority that the Executive can muster in support of its absolute immunity assertion are two OLC opinions authored by Attorney General Janet Reno and Principal Deputy Assistant Attorney General Steven Bradbury, respectively.

[…]

[T]he Court is not at all persuaded by the Reno and Bradbury opinions.

Id. at pp. 85-86.

As noted by both Chairman Conyers and Judge Bates, Ms. Miers’ failure to appear pursuant to validly issued subpoenas was not supported by any colorable basis in law.  Accordingly, her failure to appear is in violation of the Texas Rules of Professional Conduct and her conduct calls into question her fitness to practice law.

H/t to Zachary Roth at TPMMuckraker for Miers Testifies in US Attorneys Probe — When Will Rove?

Crossposted at Oxdown Gazette.

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Bar complaints filed against Yoo, Bybee, Addington, Ashcroft, Gonzales, Mukasey, 6 others

Justin Blum at Bloomberg (h/t Zachary Roth at TPMMuckraker) reports that state bar complaints have been filed against twelve Bush administration lawyers involved in the authorization and sanctioning of torture by the United States of America, including two attorneys, Alberto Gonzales and John Yoo, whose disbarments I have long been advocating. [A complete list of the grieved attorneys – with links to the complaints – is included at the end of this post]. See also these reports by UPI, CNN and Scott Shane at NYT. Upon signing and filing the complaints on behalf of VotersForPeace (donate here ) and a coalition of organizations led by Velvet Revolution, attorney Kevin Zeese, Executive Director of VotersForPeace, stated in part:

Today, we filed complaints with the District of Columbia Bar and with four other states seeking the disbarment of 12 Bush-Cheney torture lawyers. These lawyers misused their license to practice law to provide legal cover for the war crime of torture. This misuse of their license requires the bar association to disbar them or the bar will become complicit in torture.

Complaints have been filed against: John Yoo, Judge Jay Bybee, and Stephen Bradbury who authored the torture memoranda. As well as attorneys who advised, counseled, consulted and supported those memoranda including Alberto Gonzales, John Ashcroft, Michael Chertoff, Alice Fisher, William Haynes II, Douglas Feith, Michael Mukasey, Timothy Flanigan, and David Addington. These detailed complaints, with over 500 pages of supporting exhibits, have been filed with the state bars in the District of Columbia, New York, California, Texas and Pennsylvania, and they seek disciplinary action and disbarment. …

This cadre of torture lawyers colluded to facilitate the abuse and torture of prisoners (detainee) that included, evidence suggests, deaths at overseas U.S. military facilities. Human Rights Watch reports 98 deaths of people in custody of the United States in Iraq and Afghanistan. Making torture even worse in this case is that it was used to try and get information to tie Saddam Hussein to al Qaeda – a relationship that did not exist – as well as information about non-existent weapons of mass destruction in order to justify the illegal invasion and occupation of Iraq.

We have asked the respective state bars to revoke the licenses of these attorneys for moral turpitude. They failed to show “respect for and obedience to the law, and respect for the rights of others,” and intentionally or recklessly failed to act competently, all in violation of legal Rules of Professional Conduct. Several attorneys failed to adequately supervise the work of subordinate attorneys and forwarded shoddy legal memoranda regarding the definition of torture to the White House and Department of Defense. These lawyers further acted incompetently by advising superiors to approve interrogation techniques that were in violation of U.S. and international law. They failed to support or uphold the U.S. Constitution, and the laws of the United States, and to maintain the respect due to the courts of justice and judicial officers, all in violation state bar rules.

Torture is illegal under United States and international law. It is illegal under the U.S. Constitution, domestic law and international treaties to which the United States is a party.

* * *

The torture memoranda did not provide objective legal advice to government decision-makers, but instead twisted the state of the law so that it was unrecognizable. They were so inaccurate that these memoranda are more justifications about what the authors and the intended recipients wanted the law to be, rather than assessments of what the law actually is.

* * *

We decided to take action today because the federal government seems unable and unwilling to act. The Department of Justice’s Office of Professional Responsibility has taken nearly five years to complete its report, as some of the memoranda at issue became public in June 2004. Further, this OPR investigation is focused only on two lawyers, John Yoo and Jay Bybee rather than all those involved. This inexcusable delay is unfair to the public because the consequences of any wrongdoing are diminished. The delay has already benefited the two men under investigation, John Yoo now has tenure at Berkeley law school and Jay Bybee now has a lifetime appointment as a federal court of appeals judge. If OPR had completed its duties in a timely manner it is unlikely that either appointment would have been made.

In addition to inaction by OPR, the Congress where select Members were briefed 40 times by the CIA, seems unable to take action because of fear of its own complicity being exposed. And, Attorney General Eric Holder, has now testified that he approved renditions – which results in prisoners being tortured by other countries at the behest of the United States – during the Clinton administration. And, sadly, the President of the United States has now decided to hide evidence of war crimes by refusing to release photographic and video evidence despite a court order to do so. Finally, the administration is appointing General McChrystal to be the head of operations in Afghanistan despite being responsible for commanding Fort Nama in Iraq as well as special forces involved in torture[.]

* * *

Therefore, the people must act to face up to this issue and restore morality and Rule of Law to the United States. In addition to filing these complaints we are starting a campaign for disbarment, public torture hearings and for the appointment of an Independent Prosecutor. People who want to get involved are urged to go to DisbarTortureLawyers.com and VotersForPeace.us.

Only by taking torture out of politics and allowing an independent prosecutor to pursue the facts and apply the law will the United States recover from these war crimes. Application of the rule of law, beginning with disbarment, is a necessary part of the process of healing the nation.

The Velvet Revolution statement regarding the filing of the complaints adds, in part, that:

The individually tailored complaints allege that the named attorneys violated the rules of professional responsibility by advocating torture. The memos written and supported by these attorneys advocating torture have now been repudiated by the Department of Justice, the White House, the Department of Defense and other experts in the field. The recently released Senate and Red Cross reports on detainee treatment provide uncontroverted evidence that the torture techniques advocated by the attorneys were used on human beings over an extended period of time. We have also sent a letter to House Judiciary Chairman John Conyers, asking that he initiate impeachment proceeding against Jay Bybee, who is now a sitting federal judge. The evidence is clear that, during his confirmation hearings, Mr. Bybee misused the classified status of his torture memos to portray a false picture of his legal history. Several Senators have stated publicly that Mr. Bybee would not have been confirmed if they had been aware of his torture memos. The bar complaints have been signed by our board attorney, Kevin Zeese, who also directs the Campaign for Fresh Air and Clean Politics, and Voters for Peace.

We ask other organizations to sign on to this campaign by sending an email to DisbarTortureLawyers@velvetrevolution.us. Individuals can sign on using the form below. This campaign will include a broad public relations push so we urge everyone to spread the word and for the press to contact us for comment and interviews.

You can make targeted donations to this campaign at with an earmark comment in the box at http://www.velvetrevolution.us/donate.php.

The complaints were filed against the following attorneys:

Links to the complaints can also be found at Velvet Revolution here, where you will find a Sign On Form to add your name to the campaign as well as links to the exhibits attached to the complaints, the released torture memos and other information.

Updated 05-19-09 to correctly identify William James Haynes II (instead of Michael Haynes) as one of the dirty dozen torture lawyers.  (h/t earlofhuntingdon)

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Alberto Gonzales and Leura Canary named to Top Ten Prosecutors list for 2008

Crossposted at Oxdown Gazette.

Update 08-12-09: The link to the Bad Prosecutors 2008 annual list of the ten worst prosecutors has been corrected.

Update 05-20-09: I was updating links that had gone bad, including the link for the 2008 annual list of the ten worst prosecutors included in this post below.  For reasons unknown to me, it appears that post has been deleted from Bad Prosecutor.  I have asked Mr. Bennett for an explanation.

Bad Prosecutors, published by the Bennett Law Firm, of Houston, Texas, has compiled its annual list[bad link – post removed from site – 05-20-09] – of the ten worst prosecutors – who will each receive a Certificate of Under Achievment [sic]. This year marks Mrs. Canary’s debut to the List, but Mr. Gonzales is now a deserving 2-time honoree:

Image

See all the Certificates here.

In its press release, the Bennett Law Firm explained that the release of the list was delayed due to the election so the firm “would not be accused of being “political[,]” adding that “[w]e plan not to wait as long to release the Top 10 nominees coming in 2009. Therefore, continue to send in your nominations to bbennett@bennettlawfirm.com.” (My emphasis) (Thanks to SH for this link.)

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Update on Texas Supreme Court Justices’ Ethics Hearings

As I noted back in July, ethics hearings on grievances filed against Texas Supreme Court Justices Nathan Hecht and David Medina were scheduled to be heard on August 14, 2008.

Chris Rizo, who has covered these complaints for The Southeast Texas Record, reports at LegalNewsline.com that Judge Hecht’s ethics complaint was referred for further grievance proceedings:

AUSTIN, Texas (Legal Newsline)-The Texas Ethics Commission has decided to hold a formal hearing to investigate charges that state Supreme Court Justice Nathan Hecht accepted an illegal campaign contribution, a watchdog group told Legal Newsline on Friday.

The panel, also on Thursday, postponed the preliminary hearing into charges that Supreme Court Justice David Medina illegally reimbursed himself from his campaign account.

Mr. Rizo also reports that Judge Medina’s complaint was postponed until the regular October meeting of the Texas Ethics Commission:

As for Medina, Texas Watch filed its complaint against him in January. His matter will be taken up behind closed doors at the next regular meeting of the Ethics Commission in October, when the panel will decide whether the case warrants a formal hearing, [Alex Winslow, director of Texas Watch] said.

Read Mr. Rizo’s complete article here .

The Associated Press’ Jay Root also covered the scheduled hearings. He reports via the Houston Chronicle that, (perhaps?) defying conventional wisdom, Justice Hecht represented himself:

AUSTIN — Supreme Court Justice Nathan Hecht, appearing before the Texas Ethics Commission, defended himself Thursday against allegations he broke campaign finance laws by accepting discounted legal fees to fight an abuse of office complaint.

And that after the unfavorable hearing results, Justice Hecht bravely faced the press:

The state commission took no action Thursday but will consider the matter at a formal hearing later, officials said. Hecht, the longest-serving member of the Texas Supreme Court, quietly slipped past reporters at the state capitol and did not return phone calls from The Associated Press.

* * *

It’s not clear how long Hecht spent at the closed hearing. Reporters waiting for him to emerge were told Hecht had given them the slip.

“He’s been gone,” [Wilhelmina Delco, a member of the Texas Ethics Commission,] said hours after the hearing began early Thursday afternoon. “He eased out the other door.” (Emphasis mine).

As reported by Mr. Root, the complaint against Justice Hecht arose from his support of Harriet Miers’ nomination by President Bush to the United States Supreme Court:

Hecht was sanctioned in 2006 by the State Commission on Judicial Conduct, which alleged that he had abused his office by promoting Harriet Miers for a seat on the U.S. Supreme Court. Legal canons bar Texas judges from endorsing candidates for public office, but Hecht was able to get the sanction reversed on appeal by arguing that Miers was not running for elective office.

But Harriet Miers was more than just a Supreme Court nominee that Justice Hecht has decided to promote: Ms. Miers is also Justice Hecht’s former girlfriend and it was also Justice Hecht who first introduced Ms. Miers and President Bush. Unsurprisingly, this story leads back to President George W. Bush.

Read Mr. Root’s complete article here .

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Update: Harriet E. Miers

I have updated the statement of facts alleging various violations by Harriet E. Miers of the Texas Rules of Professional Conduct with the recent Memorandum Opinion in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). in which United States District Judge John D. Bates confirms conduct of Ms. Miers that calls into question her fitness to practice law.

Personal Information:

  • Name: Miers, Harriet E.
  • Bar: Texas
  • ID No: 00000067
  • Status: Active

Grievance Information: Texas

Allegations:

Willful Failure to Appear pursuant to a Lawful United States House Judiciary Committee Subpoena

On June 13, 2007, Rep. John Conyers, Jr., and Sen Patrick Leahy, as Chairmen of the United States House and Senate Committees on the Judiciary, respectively, issued multiple subpoenas to former White House Counsel Harriet Miers to produce certain requested documents and to appear for testimony before the House Judiciary Subcommittee on Commercial and Administrative Law on July 12, 2007. See Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007; See also page 39, Memorandum to the Members of the Committee on the Judiciary from Rep. John C. Conyers, Jr., Chairman, dated July 24, 2007. On July 9, 2007, George Manning, attorney for Ms. Miers, informed the House Committee that Ms. Miers would “comply with the White House ‘direction[]’ by current White House Counsel Fred Fielding who “‘directed’ Ms. Miers not to provide testimony to the Committee. Id. at page 41. Chairman Conyers and Subcommittee Chair Linda Sanchez wrote to Mr. Manning stating “that it was incumbent on Ms. Miers to appear so that the Subcommittee could consider her claims of privilege concerning specific documents or in response to particular questions posed as the hearing. Id. Ms. Miers failed to appear before the House Judiciary Subcommittee on July 12, 2007. Id. at page 42. After failing to appear, and in response to an inquiry by Chairman Conyers, “Mr. Manning informed Chairmen Conyers on July 17, 2007, that his client intended to remain noncom pliant with the subpoena. Id . In the Memorandum, Chairman Conyers states:

Even more extraordinary than the executive privilege claims in this matter is the assertion that Ms. Miers, a former White House official not currently employed by the federal government, is absolutely immune from even appearing before the Subcommittee as directed by subpoena. The Supreme Court has specifically held that even a President, while serving in that capacity, can be subpoena by a court and can be required to participate in a civil lawsuit for damages by a private party. [FN 281] The Court’s holding in Jones flies in the face of the claim that a former White House official is somehow immune from even appearing in response to a Congressional subpoena. As with Sara Taylor, who received a subpoena similar to Ms. Miers’ but chose to appear and answer some questions before the Senate Judiciary Committee, no one can doubt that Ms. Miers would have been asked some questions that would not have fallen within even the broadest assertion of executive privilege, but Ms. Miers simply refused to attend her hearing altogether. Id .

* * *

[T]here is an additional reason that Ms. Miers’ claims concerning executive privilege were and should be rejected. When a private party like Ms. Miers is subject to a subpoena, it is improper for the subpoenaed person simply to refuse to … testify based on an assertion of privilege by a third party, in this case, the White House. … To the extent that the White House objected to the subpoena to Ms. Miers as a private citizen, therefore, its proper recourse – which would have been more than adequate to protect its own asserted rights – would have been to seek a court order, rather than unilaterally “directing” Ms. Miers to disobey a lawful subpoena herself. Id. at page 46.

* * *

[M]s. Miers was not being misled by a government entity into thinking she was acting lawfully, but instead she chose, with full knowledge of the possible consequences, to follow the White House’s flawed “directive.” As the entity which issued the subpoena to Ms. Miers, only the Committee was in a position to give her “reasonable reliance” that she could lawfully refuse to comply, but in fact the Committee did precisely the opposite and made clear that she was required to obey her subpoena. Id. at page 48. (emphasis in original)

* * *

As explained in the July 12 and July 19 rulings upheld by the Subcommittee on Commercial and Administrative Law, the refusal … of Ms. Miers to testify or even appear pursuant to subpoena [has] no proper legal basis. Id. at page 52. FN 281 See Clinton v. Jones, 520 U.S. 681, 703-06 (1997). As the Court noted in United States v. Bryan, 339 U.S. 323-331 (1950), “persons summoned as witnesses have certain minimum duties and obligations which as necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. …We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.”

As a result of her refusal to appear before the Subcommittee pursuant to a lawful subpoena, the House Judiciary Committee approved a contempt of Congress citation against Ms. Miers. House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007. See also House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007. Ms. Miers failure to appear pursuant to subpoena and her receipt of a contempt of Congress citation violate her ethical obligations under the Texas Disciplinary Rules of Professional Conduct .

Chairman Conyers’ position has been upheld by United States District Judge John D. Bates in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). In his Memorandum Opinion, Judge Bates introduced the position taken by Ms.Miers as unprecedented, is without any support in the case law and fallacious:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Id. at p. 3.

In footnote 1 of his Opinion, Judge Bates’ states that “The Court will refer to the defendants in this action, and to the executive branch and the current administration generally, as “the Executive.” Id. at p. 2. Accordingly, each and every reference to the Executive is a reference to, inter alia, Mr. Miers.

Because Ms. Miers presented no legitimate claim for absolute immunity, Judge Bates rules that Ms. Miers must, in fact, appear pursuant to the validly issued subpoenas of the United States House and Senate Committees on the Judiciary:

Clear precedent and persuasive policy reasons confirm that the Executive cannot be the
judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from
compelled congressional process. Ms. Miers is not excused from compliance with the
Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be made. Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate. [Footnote] 38 [is not included herein] And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177.

Id. at p. 91.

In his analysis, Judge Bates provided an exhaustive review of the facts and then summarized the underlying facts in this matter:

The undisputed factual record, then, establishes the following. Notwithstanding a prolonged period of negotiation, [Footnote] 7[,] the parties reached a self-declared impasse with respect to the document production and testimony at issue here. Faced with that reality, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and certified the Contempt Report to the U.S. Attorney for the District of Columbia to pursue criminal enforcement of the contempt citations. The Attorney General then directed the U.S. Attorney not to proceed against Ms. Miers and Mr. Bolten. The Committee, then, filed this suit seeking civil enforcement of its subpoena authority by way of declaratory and injunctive relief.

[Footnote] 7 Mr. Fielding’s final letter to Chairman Conyers reveals that the Chairmen had “written ‘on eight previous occasions,’ three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” See Pl.’s Mot. Ex. 34.

Id. at pp. 16-17.

Judge Bates also addresses Ms. Miers’ claim of absolute immunity, which was the basis for her refusal to even appear before the House and Senate Committees on the Judiciary:

The Executive maintains that absolute immunity shields Ms. Miers from compelled testimony before Congress. Although the exact reach of this proposed doctrine is not clear, the Executive insists that it applies only to “a very small cadre of senior advisors.” See Tr. at 96. The argument starts with the assertion that the President himself is absolutely immune from compelled congressional testimony. There is no case that stands for that exact proposition, but the Executive maintains that the conclusion flows logically from Nixon v. Fitzgerald, 457 U.S. 731 (1982), where the Supreme Court held that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. “Any such [congressional] power of compulsion over the President,” the Executive asserts, “would obviously threaten his independence and autonomy from Congress in violation of separation of powers principles.” See Defs.’ Reply at 40. The Executive then contends that “[those] same principles apply just as clearly to the President’s closest advisers.” Id. Because senior White House advisers “have no operational authority over government agencies . . . [t]heir sole function is to advise and assist the President in the exercise of his duties.” Id. at 41. Therefore, they must be regarded as the President’s “alter ego.” In a similar context, the Supreme Court has extended Speech or Debate Clause immunity to legislative aides who work closely with Members of Congress. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Accordingly, forcing close presidential advisors to testify before Congress would be tantamount to compelling the President himself to do so, a plainly untenable result in the Executive’s view. Indeed, as the Executive would have it, “[w]ere the President’s closest advisers subject to compelled testimony there would be no end to the demands that effectively could be placed upon the President himself.” See Defs.’ Reply at 43.

Unfortunately for the Executive, this line of argument has been virtually foreclosed by the
Supreme Court. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the plaintiff sued “senior White
House aides” for civil damages arising out of the defendants’ official actions. Id. at 802. The defendants argued that they were “entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.” Id. at 808. The Supreme Court rejected that position. Notwithstanding the absolute immunity extended to legislators, judges, prosecutors, and the President himself, the Court emphasized that “[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm.” Id. at 807. Although there can be no doubt regarding “the importance to the President of loyal and efficient subordinates in executing his duties of office, . . . these factors, alone, [are] insufficient to justify absolute immunity.” Id. at 808-09 (discussing Butz v. Economou, 438 U.S. 478 (1978)).

Id. at pp. 79-80.

Judge Bates continues to decimate Ms. Miers’ claim of absolute immunity:

There is nothing left to the Executive’s primary argument in light of Harlow. This case, of course, does not involve national security or foreign policy, and the Executive does not invoke that mantra. The derivative, “alter ego” immunity that the Executive requests here due to Ms. Miers’s and Mr. Bolten’s close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here. Indeed, the Executive asks this Court to recognize precisely the type of blanket derivative absolute immunity that the Supreme Court declined to acknowledge in Harlow.

Id. at pp. 81-82.

Judge Bates also expressly pointed out that there is NO judicial precedent for Ms. Miers’ claims:

Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress to testify and assert executive privilege where appropriate. Still, it is noteworthy that in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record also does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears. [Emphasis in original.]

Id. at pp. 83-84.

And that Ms. Miers’ claims are based solely on two (2) legal opinions issued by the Executive Branch itself:

Tellingly, the only authority that the Executive can muster in support of its absolute
immunity assertion are two OLC opinions authored by Attorney General Janet Reno and Principal Deputy Assistant Attorney General Steven Bradbury, respectively.

* * *

[T]he Court is not at all persuaded by the Reno and Bradbury opinions.

Id. at pp. 85-86.

Since Ms. Miers’ failure to appear pursuant to validly issued subpoenas is not supported by any colorable basis in law, her failure to appear is in violation of the Texas Rules of Professional Conduct. Accordingly, Ms. Miers’ conduct calls into question her fitness to practice law.

Supporting Links:

Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007

Memorandum to the Members of the Committee on the Judiciary regarding Full Committee Consideration of Report on the Refusal of Former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to Comply with Subpoenas By the House Judiciary Committee, Rep. John C. Conyers, Jr., Chairman, July 24, 2007

House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007

House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007

Rules Violated:

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Nominees needed for 10 Worst U.S. Prosecutors for 2008

I was searching for like-minded souls one night several months ago when I stumbled upon the “good” prosecutors at Bad Prosecutors. I felt right at home when I read this statement :

Welcome! This Blog is published by the Bennett Law Firm with Sherri Katz and Bob Bennett being principal contributors. For over thirty years, the firm has been involved in criminal, civil, and administrative investigations. Both Sherri Katz and Bob Bennett have served in the United States Attorney’s Office for the Western District of Texas. They consider themselves to be “good” prosecutors with experience in both state district attorneys offices and federal prosecutors with the United States Attorney’s Office. When we see bad prosecutors or prosecutors engaged in bad acts, we see a need to speak out and let the world know of our protestations and anger. Maybe you feel the same? If so, we hope you will share with us and others what bad prosecutors and bad prosecutorial acts the world needs to know about. Thru notoriety, recusals, and even disbarments, we hope to bring to justice to what some bad prosecutors do. (Emphasis supplied.)

Mr. Bennett is a partner with the Bennett Law Firm, L.L.P., which is

… the largest law firm in Texas that specializes in representing members of the legal profession in grievance matters and other professional concerns. Robert Bennett has represented lawyers before the Grievance or “Just Cause” in every part of the state in the last ten (10) years. Depending on the allegations brought by the State Bar Commission, he has generally been able to meet the expectations of his clients and negotiated a resolution that is acceptable.

Yesterday, Bob Bennett honored my blog with this comment asking for help in preparing his 10 Worst U.S. Prosecutors for 2008:

we are in the process of updating our 10 Worse Prosecutors for 2008 and would appreciate any nominations. We are looking at the prosecutors in Alabama. Any suggestions would be helpful.

I would start with Leura Canary, Stephen Feaga, Louis Franklin, Alice Martin, Richard Gregorie, Rachel Paulose and Dunn Lampton. Please leave a comment if you have any suggestions. Please also take some time to check out Bad Prosecutors.

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Texas Watch files ethics complaints against Texas Supreme Court justices

Updated August 15, 2008 with results of August 14, 2008 hearings.

Chris Rizo at The Southeast Texas Record (h/t The Daily Muck at TPMMuckraker) reported yesterday that “[a]t least two Texas Supreme Court justices have ethics complaints pending against them” that were “filed by the judicial watchdog group Texas Watch” and which are scheduled for review on August 14, 2008. Mr. Rizo reports that the

The complaint against [Justice Nathan] Hecht stems from representation by the Jackson Walker law firm in a dispute with the Commission on Judicial Conduct in 2006 over promoting President George W. Bush’s short-lived nomination of former White House Counsel Harriet Miers to the U.S.
Supreme Court.

The complaint against [Justice David] Medina alleges that he may have violated state law by paying himself nearly $57,000 from his political funds over three years as mileage reimbursement for commuting between Austin and his Houston-area home.

Texas Watch announced filing the complaints against Justices Hecht and Medina back in January 24, 2008, at which time they also announced a third complaint against a sitting Texas Supreme Court justice:

AUSTIN – Complaints were filed this morning against Texas Supreme Court Justices Nathan Hecht and David Medina with the Texas Ethics Commission by the citizens group Texas Watch. The complaints allege that the justices used political contributions to pay for personal travel.

* * *

Earlier this week, Texas Watch filed a complaint against Justice Paul Green for violating the same statutory prohibition on converting political funds to personal use by paying for commuting expenses. Texas Watch has also notified the Public Integrity Unit of the Travis County District Attorney’s office of the complaints the group filed today.

Complete January 24, 2008 Texas Watch Press Release here

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Until I read Chris Rizo’s article today, I hadn’t heard of Texas Watch. Texas Watch describes itself as

a non-partisan, advocacy organization working to improve consumer and insurance protections for Texas families. Texas Watch’s thousands of activists across the state make their voices heard to preserve their rights and protections. Texas Watch strives to provide a counter to wealthy special interest lobby efforts and ensure Texas laws reflect the true needs of Texas families and consumers.

The above complaints were filed under its Court Watch project which

[f]or more than a decade, … has served to educat[e] the public about the importance of the Texas Supreme Court. Court Watch serves as a key resource on civil court issues, producing regular reports, analyses and releases to the public, the media and decision-makers. These activities foster broader public awareness, discussion and debate about the role of the Texas civil justice system and the actions of the Texas Supreme Court.

Harriet E. Miers and former Texas Supreme Court justice Alberto Gonzales should be the next project for Court Watch.

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