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Judge Rebuffs White House Immunity

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Also posted at my web magazine: The Public Record

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.

“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.

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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.
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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."

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Jason Leopold is Deputy Managing Editor of and the founding editor of the online investigative news magazine The Public Record, He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)

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