|
 A federal appeals court Thursday temporarily blocked former White House Counsel Harriet Miers from testifying before a House panel next week about the firings of nine U.S. attorneys, the latest development in Congress's yearlong effort to obtain information about the Bush administration's role in the matter.
The U.S. Court of Appeals for the District of Columbia said House Judiciary Committee attorneys have until next Wednesday at 4 p.m. to argue why a ruling issued by a federal district judge last month, who rejected the White House's blanket claim of executive privilege as unprecedented and ordered Miers to comply with a congressional subpoena, should be upheld. The court directed the Justice Department to submit a separate argument by Monday on why Miers should not be compelled to testify.
The appeals court said Friday it wants to review the issue and hear arguments from the Department of Justice and House lawyers to determine whether the court has the authority to weigh in on the matter. "The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for stay," the three-judge panel wrote in their decision.
But court cautioned that the temporary stay "should not be construed in any way as a ruling on the merits of that motion."
House lawyers and the Justice Department were ordered to "submit supplemental memoranda, of no more than 20 pages, addressing the following questions: (1) Does this court have appellate jurisdiction over this appeal; (2) If the court does have appellate jurisdiction, will this case become moot upon expiration of the 110 Congress... and (3) If the court does have appellate jurisdiction and were to grant the motion for stay pending appeal, what schedule for briefing the merits would the parties propose," the judges wrote. The House Judiciary Committee subpoenaed Miers and Bolten last year, but the officials were instructed by President George W. Bush to ignore the subpoenas. 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.
Documents released by the Department of Justice last year show that Miers was briefed by DOJ officials about the decision to purge the U.S. attorneys and was aware that the DOJ would cook up a bogus story to explain the reason behind the dismissals.
Indeed. In February 2005, Miers suggested to Kyle Sampson, then chief of staff to Attorney General Alberto Gonzales, that perhaps all 93 U.S. attorneys should be fired.
That idea was rejected, but Sampson spent nearly two years working on a list of U.S. attorneys to purge on the basis that they were disloyal. All 93 federal prosecutors were ranked by "loyalty to the President and Attorney General."
Sampson, who was singled out in a report by the Justice Department's Inspector General in August for violating civil service laws by using a political litmus test to guide his hiring decisions at the agency, wrote to Miers suggesting "a limited number of U.S. Attorneys could be targeted for removal and replacement."
U.S. District Court Judge John Bates, a Bush appointee, ruled July 31 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 aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law."
The Justice Department had appealed to Bates 10 days ago to issue a temporary stay pending an appeal, but Bates denied the request.
"The Court will deny the Executive's request for a stay," Bates ruled Aug. 26. "Hence, the Executive should respond to the document aspect of the subpoenas by producing non-privileged material and identifying more specifically the materials it is withholding on a claim of executive privilege."
In his July 31 ruling, Bates also ordered White House Chief of Staff Josh Bolten to turn over to the Judiciary Committee an index of White House documents related to the firings of the federal prosecutors and ruled that Bolten could also be compelled to testify before the Judiciary Committee.
House Judiciary Committee Chairman John Conyers has scheduled Miers testimony for Sept. 11.
Three 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.
In his letter to Conyers following Bates's ruling, Fielding said the White House was interested in working "cooperatively to resolve these issues."
"Toward that end, and hopefully as a prelude to meaningful discussions between us, I propose that members of our respective staffs meet as early as next week to re-commence discussing possibilities for reaching an accommodation between the Branches in this matter," Fielding wrote Friday in his letter to Conyers.
"As I know you appreciate, this litigation is very important in determining constitutional contours governing certain relations between the Executive and Legislative Branches in the Congressional oversight setting," Fielding wrote. "Accordingly, the Department of Justice has now filed an appeal in this matter, and is also seeking a stay of the decision pending review by the U.S. Court of Appeals for the D.C. Circuit.
"That course of action will provide appellate consideration of the novel questions at stake in this matter and will enable the parties to obtain, if it should prove necessary, a final decision in this important matter...However, the fact that the Executive has notice an appeal in this matter does not signify that we think further litigation is the exclusive path forward."
House counsel Irv Nathan said negotiations have been "completely useless."
"We have not found willing partners on the other side of the table," Nathan said in court Wednesday, telling Bates "we're being dunced around here."
Trackback(0)
 |
Subscribe to TPR 
Law 
TrackBack URI for this entry
Subscribe to this comment's feed
