A three-judge panel of the U.S. Court of Appeals for the District of Columbia granted the White House a stay on subpoenas that sought testimony from former White House counsel Harriet Miers and internal documents from White House Chief of Staff Josh Bolten.
The panel also refused to expedite consideration of a White House appeal challenging a District Court ruling that had ordered Miers and Bolten to comply. In other words, the stay either ends the case or forces the next Congress to renew the subpoenas in 2009 after Bush leaves.
Two of the Appeals Court judges were appointed by Republicans – Douglas Ginsberg by Ronald Reagan and Raymond Randolph by George H.W. Bush. The third judge, David Tatel, was appointed by Bill Clinton.
The two Republican judges said they were granting the stay to give the Bush administration more time to defend its broad claims of executive privilege, but they also refused to hear the appeal and noted that the subpoenas would expire at the end of the year when the 110th Congress dissolves.
“In view of the above considerations, we see no reason to set the appeal,” the ruling said. “If the case becomes moot, we would be wasting the time of the court and the parties."
Democratic-appointed Judge Tatel, while concurring on the stay, questioned the Republican judges’ logic.
“I am perplexed by the panel majority’s willingness to grant a stay while hypothesizing that the expiration of the 110th Congress might moot the case before it is heard on the merits,” Tatel wrote. “Never have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the District Court” before Judge John Bates.
Tatel said he joined in the ruling because he believed the 111th Congress could revive the case when it convenes in 2009, although that means the Bush administration would have succeeded in delaying a resolution of the controversy until President Bush had left office.
House Judiciary Committee Chairman John Conyers indicated that his committee would appeal the decision, but he did not say whether he would wait until next year to do that.
"While the delay caused by this incorrect decision is unfortunate, at the end of the day, I believe Judge Bates's decision will be affirmed and that Harriet Miers and other key witness will appear before the House Judiciary Committee, and that we will get to the bottom of the Bush administration's disgraceful politicization of the Justice Department," Conyers said.
On July 31, Judge Bates ruled that the White House’s legal argument of blanket executive privilege lacked legal precedent and that Miers must comply with the congressional subpoena, invoking executive privilege only on a question-by-question basis.
Bates called the White House executive-privilege position “entirely unsupported by existing case law. ... 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 White House then sought a stay of Bates’s ruling pending appeal.
Carl Nichols, the Justice Department’s deputy assistant attorney, told the Appeals Court panel that Miers would suffer professionally and personally if she were forced to testify before Congress about the U.S. Attorney firings. However, Nichols did not provide details on how that might occur.
Meanwhile, House counsel Irvin Nathan said Miers has crucial information to help the Judiciary Committee move its probe forward.
The dispute arose when President Bush forbade Miers and Bolten to comply with a congressional subpoena about the prosecutors’ firings in 2006. The House then 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.
Last week, the Justice Department’s Inspector General and the Office of Professional Responsibility issued a 356-page report on the U.S. Attorney firings that “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.”
Inspector General Glenn Fine and H. Marshall Jarrett, head of the Office of Professional Responsibility, found that Miers was involved in at least two of the dismissals and that Bolten played a role in at least one.
Neither Miers nor Bolten agreed to be interviewed by the Justice Department’s internal watchdogs.
Although Miers’ refusal to cooperate “hindered” the 18-month investigation, Fine and Miers were able to piece together enough evidence to conclude that Miers likely played a role in the firing of John McKay, U.S. Attorney for the Western District of Washington.
According to the report, McKay’s firing was due, in part, to the fact that he would not convene a federal grand jury and secure indictments of alleged voter fraud in the 2004 governor's race in the state in which Democrat Christine Gregoire defeated Republican Dino Rossi by a margin of 129 votes.
In an interview last year, McKay said some Republicans in his district with close ties to the White House demanded that he launch an investigation into the election and bring charges against individuals for voter fraud. But McKay concluded there was no evidence to support the suspicions.
McKay also said he believes he was not selected for a federal judgeship by local Republicans in Washington State last year because he did not file criminal charges against Democrats.
McKay said he requested a meeting with then-White House Counsel Miers to discuss the matter.
"I asked for a meeting with Harriet Miers, whom I had known since work I had been involved in with the American Bar Association, and she immediately agreed to see me in August of 2006," McKay told me.
McKay said that when he met with Miers and her deputy William Kelley at the White House, the first thing they asked him was, "Why would Republicans in the state of Washington be angry with you?"
That was "a clear reference to the 2004 governor's election," McKay said in characterizing Miers’s and her deputy's comments. "Some believed I should convene a federal grand jury and bring innocent people before the grand jury."
The meeting with Miers and Kelley did not have a positive impact on McKay's request to be appointed a judge at U.S. District Court. Instead, McKay said it appears that he landed on the list of U.S. Attorneys to be fired just a few weeks after his meeting with Miers and Kelley.
Moreover, according to the report, Miers was involved in pushing out Bud Cummins, the U.S. Attorney for the Eastern District of Arkansas.
Bolten was allegedly contacted by Steve Bell, chief of staff to Sen. Pete Domenici, R-New Mexico, who expressed dissatisfaction with the state’s U.S. Attorney David Iglesias, according to the report, because Iglesias would not prosecute alleged voter fraud cases.
Bell allegedly asked Bolten whether the White House could intervene and have Iglesias removed, according to the report.
Bolten and Miers still may find themselves subpoenaed by Nora Dannehy, a federal prosecutor from Connecticut who was appointed by Attorney General Michael Mukasey to continue the investigation.
Dannehy may have subpoena power, something that Fine and Jarrett lacked. She is charged with investigating whether any Justice Department or White House officials committed crimes as a result of the firings and in their efforts to cover it up after the fact.
Dannehy is expected to file preliminary report with the Justice Department in 60 days.
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This story was published on October 8, 2008.