“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."
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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