Executive privilege showdown looms for Congress, White House
House Democrats schedule a hearing that would put former White House counsel Harriet Miers under oath. The Justice Department prepares a last-ditch court appeal.
By Richard B. Schmitt, Los Angeles Times
August 28, 2008
WASHINGTON — Congress and the Bush administration headed for a preelection showdown Wednesday over the issue of executive privilege, with House Democrats scheduling a hearing that would put a key former administration figure under oath and the Justice Department mapping a last-ditch court appeal.
Justice lawyers said they would go to court as soon as today to block a ruling by U.S. District Judge John D. Bates that forces the White House to cooperate with a congressional investigation into the politically charged firing of nine U.S. attorneys in 2006.
The move came as Democrats pushed ahead with that investigation. Rep. John Conyers Jr. (D-Mich.), the chairman of the House Judiciary Committee, announced that he was calling former White House counsel Harriet E. Miers to appear before the committee on Sept. 11 to answer questions about her role in the firings.
Conyers also set a Sept. 4 deadline for the administration to turn over White House documents concerning the firings as well as a log detailing what documents it was withholding because of security concerns and why.
Legal experts said they doubted that the Justice Department would succeed in persuading the federal appeals court in Washington to intervene in the matter at this point. But it was also unclear what questions Miers would choose to answer if she took the witness chair next month, and that raised the possibility of further legal wrangling.
Experts said the tug-of-war also seemed unlikely to be resolved before January, when the subpoenas legally expire. That would confront the new Congress with the decision whether to renew the battle.
“It is an unpredictable game at this point,” said Charles Tiefer, a former House counsel who is a professor at the University of Baltimore law school. “The Congress could win or the White House could drag it out.”
The rapid-fire series of events was triggered by an order by Bates on Tuesday in which he declined to put on hold a July 31 ruling in which he held that the refusal of the administration to cooperate in the U.S. attorney investigation was legally untenable.
Bates had ruled that the administration’s position that it had “absolute immunity” from being forced to honor subpoenas issued by Congress was unprecedented. He said Miers was obliged to at least show up — but did not rule on which questions she would be required to answer.
Justice Department lawyers told Bates at a hearing Wednesday that they intended to ask the appeals court to overrule the judge. Justice Department lawyer Carl Nichols indicated the government would file court papers to that effect no later than today.
Investigators are trying to determine whether Miers and Karl Rove, Bush’s former chief political advisor, were involved in the 2006 firings. Democrats have alleged that the prosecutors were singled out for failing to bring corruption and other cases that benefited Republicans and that the idea was hatched at the White House. Rove has also refused to appear before the House and Senate Judiciary committees and has been held in contempt by both panels.
The Justice Department has argued that the former Bush aides are immune from having to testify because of the doctrine of executive privilege, which is grounded in the principle of separation of powers and is intended to insulate presidential policymaking decisions.
Officials have also argued that, because U.S. attorneys are presidential appointees, Congress has no authority to question executive-branch advisors about decisions to fire them.
The Justice Department effort to block the lower-court ruling would be considered by a three-judge panel that is randomly assigned to hear emergency appeals. The federal appeals court here, whose alumni include Chief Justice John G. Roberts Jr. and Supreme Court Associate Justice Antonin Scalia, has a generally conservative reputation.
If the appeals court blocks Miers’ testimony, even temporarily, it could allow the Bush administration to drag out the proceedings until after the election.
But several legal scholars said they doubted that even a conservative panel would intervene. Bates himself was appointed by Bush to the federal bench in 2001, they noted, and he was likely to be shown deference.
They also said his central ruling appeared to be indisputable.
“The Supreme Court has never given any indication that the White House counsel or people who work for the president can just ignore a subpoena,” said Cass R. Sunstein, a professor at the University of Chicago law school. “It would be very surprising to think that the White House official does not even have to appear to assert the privilege.”