Hill Panel Initiates Contempt Charges Against Miers

Lee A. Casey, a lawyer who worked at the Justice Department during the Reagan administration, said, "I don't think the claim here is broader than what has been made before." Sunstein said Clement's memo was a "highly competent, but not an objective, analysis" that relied on holdings of previous administrations rather than judicial precedent.

But most legal scholars have emphasized the murkiness of this area of the law. That is "because usually they work it out, rather than deciding it in the courts," said Dawn Johnsen, who worked in the department's Office of Legal Counsel in the Clinton administration and now teaches law at Indiana University.

Clement told Fielding that the privilege extended to Miers and former White House political director Sara M. Taylor and said that it would be "very difficult, if not impossible" for the officials to separate information already disclosed by the White House from that "derived from other privileged sources."

Although Casey said Fielding's advising Miers not to attend the House hearing was a "tactical" move, others were more surprised. "It's very hard to justify [Miers's] nonappearance within the contours of executive privilege as that doctrine is widely understood," said Michael J. Glennon, a law professor at Tufts University.

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said the panel must pursue a contempt case or risk sending the message that witnesses can ignore its instructions. "Are congressional subpoenas to be honored, or are they optional?" Conyers asked.

In the Miers case, the next step could be a finding of contempt by the full Judiciary Committee, followed by a vote to issue a contempt citation by the full House. That might in turn trigger grand jury deliberations under the supervision of the U.S. attorney for the District of Columbia.

Miers finds herself in a more precarious legal situation than Taylor, who chose to respond to a similar subpoena from the Senate Judiciary Committee by appearing for testimony on Wednesday while refusing to answer many questions about White House deliberations. Taylor testified that she never discussed the prosecutor firings with Bush and that, as far as she knew, he was not involved in the dismissals.

washingtonpost.com staff writer Paul Kane and Post research editor Alice Crites contributed to this report.