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Judge Rebuffs White House Immunity
Monday, 08 September 2008 10:13
by Jason Leopold

Facing a new reversal in federal court, the Bush administration is finding its options narrowed in its effort to stop congressional testimony from former White House counsel Harriet Miers and chief of staff Joshua Bolten regarding the firing of nine U.S. attorneys in 2006.

The administration had asserted a blanket claim of executive privilege in the face of congressional subpoenas, but U.S. District Judge John Bates rejected that claim as unprecedented and, on Tuesday, denied the Justice Department’s request for a stay pending an appeal.

Under the ruling, Miers and Bolten now must appear before the House Judiciary Committee to testify about the White House role in the firings and produce documents sought by the committee.
“The Court will deny the Executive's request for a stay,” Bates ruled Tuesday. “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.

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“It is on Ms. Miers's appearance that the dispute principally focuses This decision should not, however, foreclose the parties' continuing attempts to reach a negotiated solution. Both sides indicated that discussions regarding an accommodation have resumed.”

Bates's ruling said the White House “has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question “so serious, substantial, difficult and doubtful,” as to warrant suspending the effect of the July 31st Order pending appeal."

“The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important," Bates wrote. "But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important -- primarily because it involves the relationship of the political branches -- does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee."

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.”

But while the White House negotiated with Conyers, DOJ lawyers were hopeful that Bates would grant the administration a stay, which would have likely delayed the matter 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 last week that a stay “represents the best hope of promoting an accommodation between the two branches.”

However, 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 that "we're being dunced around here."

Bates, a Bush appointee, agreed. He said he didn’t believe that the White House was serious about entering into a good faith agreement with Congress in exchange for Miers testimony.

“Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch would not be necessary,” Bates wrote. “As it stands, however, the Court must decide the questions presented to it. But there is still ample time for the parties to reach an accommodation. The Court's July 31, 2008 Order does not compel Ms. Miers to appear at any particular date.

Conyers lauded Bates’s ruling Tuesday, and said he intends to call Miers to testify before his committee on Sept 11. Conyers gave the White House until Sept. 4 to produce documents relevant to the attorney firings.

"Today's ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization this Congress,” Conyers said Tuesday. “I am heartened that Judge Bates recognized that the public interest in this matter is best served by the furtherance of the Committee's investigation. The Committee intends to promptly schedule a hearing with Ms. Miers and stands ready as always to consider any reasonable offer of accommodation with the White House."

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.

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 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.”

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 two weeks ago 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."
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