"And if the president told you to rob a bank?"

That's what I'd ask Sara Taylor and Harriet Miers. Balkanization's Marty Lederman expands:

Taylor writes that she "intend[s] to follow the President's determination." Why? Not because she has concluded that the President is correct about the executive privilege question -- indeed, in the very next sentence, she writes that "I do not have ability independently to assess or question the President's determination." No, it appears that she is following the President's "direction," rather than Congress's determination that the assertion of privilege is unjustified, simply because she is loyal - "grateful" -- to the President.

Presumably, the same kabuki dance will occur tomorrow in the House Judiciary Committee, where we can assume Harriet Miers will likewise follow the President's "directive." (I assume her lawyer, George Manning of Jones, Day, has received a virtually identical letter from Fred Fielding.)

[UPDATE: Yes, there were similar White House letters to Manning "directing" Miers not to produce documents or to testify, and she is refusing to appear altogether at tomorrow's hearing. In his letter to the House Judiciary Committee, Miers's attorney states that Miers thus is "subject to conflicting commands" -- indeed, that Miers "has no choice othen than to comply with direction given her by Counsel to the President." For the reasons expressed below, this is flat wrong. She is subject to only one legal command -- to testify. And she has a choice -- and she's choosing to violate the law.]

Now, this is odd, to say the least. Let's look more carefully at what's happening here. Taylor and Miers actually are faced with legal "directives" -- subpoenas from congressional committees. And their failure to give testimony responsive to the subpoenas is a crime, by virtue of a duly enacted statute (2 U.S.C. 192). The President, of course, believes that the application of that statute is unconstitutional in this case, because of privilege -- but neither Taylor nor Miers has personally concluded that the statute is unconstitutional as applied here (in which case noncompliance would, perhaps, be an example of civil disobedience). And, notwithstanding any rhetoric from Fred Fielding, the President does not have any legal power to "direct" Taylor and Miers (both private citizens) to violate the statutory obligation -- to commit a crime -- whatever his view of the constitutional question might be. Most importantly, the President has taken exactly no legal steps (i.e., seeking an injunction) to prevent the application of the statute here.

All of which is to say that Taylor and Miers have chosen to commit a federal crime, and to disregard the only legal directives (the subpoena, the federal statute) to which they are in fact subject.

Perhaps, at some point in the near future, the Roberts Court will make precedent the increasingly cited IOKIYAR.