CQ TODAY – LEGAL AFFAIRS
Aug. 7, 2008 – 2:32 p.m.
Administration Asks Judge to Stay Order on Subpoenas, Plans Appeal

The Justice Department Thursday asked a federal judge in Washington to stay his order for current and former White House officials to comply with congressional subpoenas, pending an appeal of the decision.

U.S. District Court Judge John D. Bates ruled July 31 that the officials were wrong not to comply with House Judiciary Committee subpoenas for documents and testimony about the 2006 firings of nine U.S. attorneys. President Bush invoked executive privilege and instructed White House chief of staff Joshua B. Bolten and former White House counsel Harriet Miers not to comply with the subpoenas. Bolten was subpoenaed for documents; Miers was subpoenaed for documents and testimony.

Bates ordered Bolten and Miers to turn over non-privileged documents, and to describe documents withheld on privilege grounds. Bates also ordered Miers — who chose not to appear before the committee — to testify and invoke executive privilege on a question-by-question basis.

Congressional Democrats have seized on Bates’ order to try to enforce their subpoenas. The administration has decided to appeal the decision to the U.S. Court of Appeals for the District of Columbia Circuit. The administration told Bates it intends to ask the circuit court to expedite its appeal, under a schedule in which all briefs and argument would be completed by November.

“Declining to stay the order would impose the very harm — compelled appearance of the president’s closest advisers — that the defendants say the Constitution prohibits, and which they seek to appeal,” Justice lawyers wrote in the motion filed on behalf of Bolten and Miers.

On Aug. 1, the House Judiciary Committee sought compliance from Bolten and Miers in light of Bates’ order. On Thursday, the committee also wrote a lawyer for the Republican National Committee, asking him to comply with a 2007 subpoena.

On July 31, Senate Judiciary Chairman Patrick J. Leahy, D-Vt., asked an attorney for former White House adviser Karl Rove whether Rove would now comply with a 2007 subpoena to testify about allegations of politically motivated Justice Department prosecutions. The same day, Leahy asked the White House for Bolten’s compliance with a Senate Judiciary subpoena related to that panel’s investigation into the federal prosecutor firings.

House Oversight and Government Reform Committee Chairman Henry A. Waxman, D-Calif., on Tuesday asked the Justice Department, the Environmental Protection Agency and the Office of Management and Budget for more information about subpoenaed documents they have withheld in other matters on executive privilege grounds.

On Thursday, White House counsel Fred F. Fielding sent a letter to Leahy saying the White House had not changed its position on the Senate Judiciary subpoenas.

“Absent a mutually agreeable resolution of the litigation between the parties, or reaching a satisfactory accommodation between the executive branch and the legislative branch as a whole, we believe that entertaining any requests for Mr. Bolten’s compliance with the Senate Judiciary Committee subpoena should await a final resolution by the courts,” Fielding wrote, adding that the administration’s stance regarding the Rove subpoena was unchanged as well.

The White House is likely to respond in the same fashion to the Aug. 1 letter from the House Judiciary Committee.

Source: CQ Today
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