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White House Returns to Court Over Miers, Bolten Testimony PDF Print E-mail
Written by Jason Leopold   
Tuesday, 19 August 2008 00:00
The Justice Department went back to federal court Monday to urge a judge to stay an order he issued last month that said current and former White House officials were not immune from congressional subpoenas.

The House Judiciary Committee subpoenaed former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten last year to testify about the role the White House played in the decision to fire nine U.S. attorneys in late 2006. Additionally, the committee sought documents from Bolten and Miers related to the attorney purge.

Bolten and Miers were instructed by President George W. Bush to ignore the subpoenas and advised not to appear before the committee. Bush claimed Bolten and Miers were immune to congressional subpoenas and any information they may have related to the firings was protected by executive privilege. The House voted to hold Bolten and Miers in contempt of Congress. It was the first time in 25 years a full chamber of Congress voted on contempt of Congress citation.

U.S. District Judge John Bates said in a July 31 order that the White House's legal argument of executive privilege was "entirely unsupported by existing case law." Bates said Miers could invoke executive privilege on a question-by-question basis. But he said Miers must comply with the congressional subpoena to exercise that right.

"... The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context," Bates wrote in a 93-page opinion. "In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive's claim of absolute immunity for senior presidential aides."

The White House appealed that decision two weeks ago. The House Judiciary Committee filed a motion last week asking Bates to reject the appeal and the administration's request for a stay. The committee was expected to call Miers and Bolten to testify when Congress returns from its summer break in September.

Department of Justice lawyers returned to District Court Monday to argue yet again that the stay be granted.

"The [Judiciary] committee fails to address the fact that, by appearing at a congressional hearing upon judicial order, Ms. Miers would risk forfeiting...immunity and thus the ability to seek meaningful relief on appeal," the DOJ told Bates on Monday. "The same is true regarding defendants' obligations with respect to documents."

Two weeks ago, White House Counsel Fred Fielding sent a letter to House Judiciary Committee Chairman John Conyers requesting a meeting to negotiate Miers and Bolten's congressional testimony in light of Bates's ruling.

But while the White House negotiates with Conyers, DOJ lawyers are hoping a judge will grant the administration a stay, which would likely drag the matter out until the end of Bush's term at which time the subpoenas for Bolten and Miers will expire.

The DOJ rejected that argument, and told Bates on Monday that a stay "represents the best hope of promoting an accommodation between the two branches."
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Last Updated on Tuesday, 19 August 2008 17:18
 

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