And in keeping with this principle, both present and former White House officials have
testified before Congress numerous times, including incumbent and former White House
Counsels. For example, I mentioned earlier that Beth Nolan has told our Subcommittee that she
appeared before Congressional committees four times on matters directly related to her duties as
White House Counsel, three of those times while she was still in that position.
As I also mentioned earlier, a Congressional Research Service study documents some 74
instances where White House advisers have testified before Congress since World War II.
2
Moreover, even the 1999 Office of Legal Counsel opinion referred to in Mr. Fielding’s
July 10 letter refers only to current White House advisers, and not to former advisers; and it
acknowledges that the courts might not agree with its conclusion as to current advisors. Such
Justice Department opinions, including a new one issued just yesterday to try to support this
claim, are not law, they state only the Executive Branch’s own view of the law, and have no
legal force whatsoever.
It is also noteworthy that both of the Justice Department opinions relied on by the White House
and Ms. Miers fail to support a single court case in support of their novel legal conclusions.
Just yesterday, another former White House adviser, Sara Taylor, appeared before the
Senate Judiciary Committee pursuant to subpoena and testified about at least some of the
relevant facts in this matter despite the White House’s assertion of executive privilege.

2
Harold C. Relyea & Todd B. Tatelman, Presidential Advisers’ Testimony Before
Congressional Committees: An Overview, CRS Report for Congress, RL 31351 (April 10,
2007).
Page 2

This White House’s asserted right to secrecy goes beyond even Richard Nixon, who
initially refused to allow his White House Counsel, John Dean, to testify before Congress, on
almost exactly the same grounds being asserted now, but then agreed that Mr. Dean and other
White House officials could testify.
3
Third, the White House has failed to demonstrate that the information we are seeking
from Ms. Miers – testimony and documents as called for by the subpoena – is covered by
executive privilege. We were not expecting Ms. Miers to be revealing any communications to or
from the President himself, which is the most commonly recognized scope of the presidential
communications privilege.
In fact, as recently as June 28, a senior White House official at an authorized background
briefing specifically stated that the President had “no personal involvement” in receiving advice
about the firing of the U.S. Attorneys or in approving or adjusting the list. Ms. Taylor testified
yesterday that she was not aware of any personal involvement by the President. We are seeking
information from Ms. Miers and other White House officials about their own communications
and their own involvement in the process.
The White House claims that executive privilege nevertheless applies, because it also
covers documents and testimony by White House staff who advise the President, apparently
based on the Espy decision.
4
But the Espy court made clear that its expansion of the presidential communications
privilege applied only when information is sought in a judicial proceeding and “should not be
read as in any way affecting the scope of the privilege in the congressional-executive context.”
5
And the Espy court also made clear that the privilege extends only to communications
from or to presidential advisers “in the course of preparing advice for the President.”
6
But the
White House has maintained that <b>the President never received any advice on, and was not</b>

3
L. Fisher, The Politics of Executive Privilege 59-60 (2004).
4
In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997).
5
Id. at 753.
6
Id. at 752.
Page 3

<b>himself involved in</b>, the U.S. Attorney firings. The presidential communications privilege, even
as expanded by the Espy case, simply does not apply here.
Fourth, with respect to our subpoena’s request for documents from Ms. Miers, the courts
have required a party raising a claim of privilege to provide a “descriptive, full, and specific
itemization of the various documents being claimed as privileged“ and “precise and certain
reasons for preserving their confidentiality.”
These words are from the Smith v. FTC case and the Black v. Sheraton case.
7
Here, no such itemized privilege log has been provided by Ms. Miers or her counsel. In
effect, the White House is telling Congress and the American people that documents and
testimony are privileged without deigning to explain why. In other words, the White House is
simply saying, “Trust us. We will decide.”
Fifth, even assuming that the information we have asked for fell within the scope of a
properly asserted executive privilege, any such privilege is outweighed by the compelling need
for the House and the public to have access to this information.

As the Supreme Court held in U.S. v. Nixon, claims of executive privilege are not
absolute, and depend on a balancing of the need for privilege versus the need for the information
being sought. Here that balance clearly weighs against sustaining any privilege claim.
The privilege claims here are weak. In addition to the points I have made already, it is
important to note that the claims by the White House are not limited to specific discussions or
documents but are an attempt at a blanket prohibition against any documents being provided and
any testimony from present or former aides whatsoever, including concerning communications
with people outside the Executive Branch altogether.
And the need for the information we seek from the White House is very strong. We have
tried extensively to obtain information from other sources, including reviewing thousands of
documents provided by the Justice Department, and hearing testimony or conducting on-the-
record interviews with 20 current or former DOJ officials.

7
Smith v. FTC, 403 F. Supp. 1000, 1018 (D. Del. 1975); Black v. Sheraton Corp., 371
F.Supp. 97, 101 (D.D.C. 1974).
Page 4

Yet we still don’t know, for example, how or why or by whom Mr. Iglesias was put on
the list to be fired. We still don’t know what actions, if any, were taken by Karl Rove or other
White House officials on the firing of Mr. Iglesias.
Similar questions remain unanswered about the firing of other U.S. Attorneys and about the
involvement of White House officials in the misleading information provided to Congress on this
subject.
Why is this important? For several reasons. For one, the evidence obtained thus far
raises serious concerns about whether federal laws have been broken in the U.S. Attorney matter
– including laws prohibiting obstruction of justice, laws like the Hatch Act against retaliating
against federal employees for improper political reasons, and laws prohibiting misleading or
obstructing Congress.
The courts have made clear that executive privilege is generally overcome when the
information sought concerns government misconduct. Indeed, the court in the Espy case stated
that when there is “any reason to believe government misconduct occurred,” the deliberative
process element of executive privilege “disappears altogether.”
8
In addition, obtaining more complete information on what happened in the U.S.
Attorneys matter may well reveal problems warranting new legislation by Congress. This is a
well-recognized ground for authorizing Congress to obtain Executive Branch information, as the
Supreme Court stated in the case of McGrain v. Daugherty.
9
Indeed, we have already passed legislation changing the rules for interim appointment of
U.S. Attorneys as an outgrowth of our investigation so far.
The White House claims that Congress’ role is limited because the appointment of U.S.
Attorneys is done by the President with the Senate’s approval. That is true, however, only
because of a law passed by Congress itself.
Under the Constitution, both the courts and the Department itself have recognized that
U.S. Attorneys are considered “inferior officers,” and that rules for their appointment and

8
In re Sealed Case, 121 F.3d at 746.
9
273 U.S. 135, 177-78 (1926).
Page 5

removal are not vested in the sole discretion of the President, but can be set by Congress, just as
we did recently in passing the law on interim appointment of U.S. Attorneys.
10
Finally, even assuming it is never proven that any laws were broken here, the evidence
already clearly indicates an abuse of power and legal authority by this Administration in the U.S.
Attorneys matter. Investigating and exposing such abuses is clearly within the oversight
authority of Congress and justifies obtaining the kind of information we seek.
As the Supreme Court ruled in the Watkins case fifty years ago, Congress has “broad power”
to investigate “the administration of existing laws” and to “expose corruption, inefficiency, or waste”
or similar problems in the Executive Branch.
11
Regardless of whether laws were broken, it is clearly important for Congress and the
American people to know, for example, whether any of these U.S. Attorneys were fired because
they refused to bring vote fraud or other cases that Republicans wanted for partisan reasons, or
because they pursued corruption or other cases against Republicans.
<b>For all the foregoing reasons, I hereby rule that Ms. Miers’s refusal to comply with the
subpoena and appear at this hearing, and to answer questions and provide relevant documents
regarding these concerns, cannot be properly justified on executive privilege or related immunity
grounds.</b>
These reasons are without prejudice to one another and to any other defects that may
after further examination be found to exist in the asserted privilege.

10
See, e.g., United States v. Sotomayor Vazquez, 69 F.Supp.2d 286 (D.Puerto Rico
1999); 2 U.S. Op. Off. Legal Counsel 58 (Feb. 28, 1978)
.
11
Watkins v. United States, 354 U.S. 178, 187 (1957).
Page 6