Washington – Supreme Court nominee Harriet Miers will have a harder time refusing next month to answer the same questions about her role in the CIA leak investigation that she declined to answer last week for Colorado Sen. Ken Salazar.
Salazar asked Miers several questions about legal advice she may have given to the White House regarding the leak of former undercover CIA agent Valerie Plame’s name to journalists. Miers could face hostile questioning from the Senate Judiciary Committee if she insists, as she did with Salazar, that the special prosecutor supervising the investigation asked her not to discuss it.
She can’t refuse on the grounds that she’s covered by attorney-client privilege because for the questions Salazar asked, she isn’t, three experts said.
“They’re going to be interested in it because there’s a criminal investigation going on,” said Tom Fitton, president of Judicial Watch, a conservative government watchdog group.
Miers is likely to be asked about her role in the investigation after her confirmation hearings begin Nov. 7, according to a Democratic aide to the panel who spoke on condition of anonymity.
The deliberate exposure of an undercover intelligence agent is a felony, and a grand jury is investigating.
When he met with her Thursday, Salazar asked Miers about her role in the case, whether she advised White House staff members and whether she had testified before the grand jury.
The Democrat said he asked Miers about the case because, as a former state attorney general, he takes seriously the need to protect undercover agents.
Miers legally could say whether she advised President Bush and also could identify by name any other White House staffers she advised, said Peter Wallison, President Reagan’s former counsel and now a resident fellow at the American Enterprise Institute, a Washington think tank.
What Miers told Bush would be off limits to Senate questioning, said Geoffrey C. Hazard Jr., professor at the University of Pennsylvania law school.
But the issue of what Miers can reveal gets stickier if she advised White House political strategist Karl Rove or I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, Wallison said. That advice could be considered personal and not fall under the protection of her role as White House counsel, and if so would not be covered by a claim of privilege, Wallison said.
Miers also could have information about the Plame case that she learned outside her capacity as attorney to the president that would not be protected by privilege, Fitton said.
Questions about whether she testified before the grand jury and what, if anything, she said definitely are not off limits, Wallison and Fitton said.
“The idea that she ought not to say she gave testimony I don’t think is going to fly in a confirmation hearing,” Fitton said. “(As for) the prosecutor asking you not to say anything, all he can do is ask.”
Even if Miers is limited to answering only whom she advised, that is important, former White House counsel Wallison said.
“You might want to know whether she was involved because people had confidence in the advice she provided,” he said.
It would also be helpful to know whether she advised Libby or Rove because that would mean she extended beyond her role as counsel to Bush, said Norman Ornstein, political analyst at the American Enterprise Institute. Moreover, how Miers answers offers a window into her mind.
With a nominee for the Supreme Court, Ornstein said, “you really want to see how they operate under pressure.”
The White House said that Miers “has carried out the direction of the president like everybody in the administration, to cooperate fully with the special prosecutor in this matter.”
“She’s been White House counsel during part of that time this investigation has been ongoing,” said Ken Lisaius, a White House spokesman. He would not respond as to whether the Senate should be allowed to ask about the Plame case and whether Miers should have to answer
