The Bush administration still is resisting a congressional subpoena seeking testimony from former White House counsel Harriet Miers on the firing of nine federal prosecutors in 2006, taking the unprecedented executive privilege battle to the U.S. Court of Appeals.
A three-judge appeals court panel – two Republican judges and one Democrat – granted the White House a stay of a lower-court order that would have required Miers to testify before the House Judiciary Committee on Thursday. The judges set deadlines this week for submitting arguments in the case.
The administration's continued resistance to permitting the testimony – even in the face of a July 31 ruling by U.S. District Court Judge John Bates, who called the White House position “entirely unsupported by existing case law” – shows how President George W. Bush can thwart congressional oversight with delaying tactics.
A parallel situation is developing in Alaska where Gov. Sarah Palin, the Republican vice presidential nominee, and her top aides are refusing to cooperate with an independent counsel investigation into allegations that Palin abused her authority in firing the public safety commissioner.
Palin’s strategy of forcing the state legislature into a subpoena fight follows in the footsteps of the Bush administration resisting congressional oversight investigations into the so-called “prosecutor-gate” and other scandals. [See Consortiumnews.com’s “Palin’s Trooper-gate Cover-up.”]
The Bush administration won at least a temporary victory on Friday with the appeals court’s decision to grant the stay.
“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 its decision. But the three-judge panel cautioned that the temporary stay “should not be construed in any way as a ruling on the merits of that motion.”
The House Judiciary Committee subpoenaed Miers and White House chief of staff Joshua Bolten last year, but they were instructed by President Bush to ignore the subpoenas. Bush claimed that Miers and Bolten were immune from congressional subpoenas, protected by the theory of executive privilege.
The House voted to hold the two officials in contempt of Congress, the first time in 25 years a full chamber of Congress has voted on a contempt-of-Congress citation.
Documents released by the Justice Department last year show that Miers was briefed by department officials about the decision to purge the nine U.S. Attorneys who were deemed insufficiently loyal to Bush and that she was aware of a planned cover story to explain the dismissals.
Judge Bates, a Bush appointee, ruled that the White House’s legal argument of blanket executive privilege lacked legal precedent and that Miers must comply with the congressional subpoena and invoke executive privilege only on a question-by-question basis.
“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 that was seen as a rebuke to the White House.
"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,” Bates wrote.
After Bates’s ruling, White House Counsel Fred Fielding sent a letter to House Judiciary Committee Chairman John Conyers requesting a meeting to negotiate possible parameters for the testimony of Miers and Bolten.
However, House counsel Irv Nathan said negotiations with the White House have been "completely useless."
"We have not found willing partners on the other side of the table," Nathan said. "We're being dunced around here."
Unable to get Bates to issue a stay of his order, the Justice Department turned to the U.S. Court of Appeals of the Washington, D.C., Circuit, which is dominated by conservative Republican appointees.
A three-judge panel of the Appeals Court then granted the stay, although putting consideration of arguments on a fast track. House Judiciary Committee Chairman John Conyers had scheduled a hearing with Miers on Thursday.
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This story was published on September 8, 2008.