Bush and Congress Together Have Run Out the Clock on the Pretense of Attempted Congressional Oversight

Appeals Court Sides With Bush Over Miers Testimony
By Jason Leopold, The Public Record

The House Judiciary Committee suffered a major setback Monday when an appeals court blocked a lower court’s ruling ordering former White House Counsel Harriet Miers to comply with a congressional [Bolten/Miers] subpoena and testify about the firings of nine U.S. Attorneys in 2006 and requiring White House Chief of Staff Josh Bolten to turn over internal documents about the scandal.

The U.S. Court of Appeals for the District of Columbia granted the White House a stay, effectively ending the long-running legal battle between the White House and Congress over the issue of executive powers.

The subpoenas for Bolten and Miers expire at the end of the year, when the 110th Congress adjourns.

The three appeals court judges, two of whom were appointed to the bench by Republicans, said the dispute between Congress and the White House over Miers testimony will likely not be resolved before the end of the year so therefore the judges said a stay was warranted.

“Even if expedited, this controversy will not be fully and finally resolved by the judicial branch ... before the 110th Congress ends on January 3, 2009,” the appeals court judges wrote in their decision. “At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire. In view of the above considerations, we see no reason to set the appeal. If the case becomes moot, we would be wasting the time of the court and the parties."

The next Congress could take up the matter when it convenes in January.

But House Judiciary 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' 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.

In a July 31 ruling, U.S. District Court Judge John 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 and invokes executive privilege only on a question-by-question basis.

Bates called the White House position “entirely unsupported by existing case law” – shows how President George W. Bush can thwart congressional oversight with delaying tactics.

“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 that was seen as a rebuke to the White House.

"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,” Bates wrote.

After Bates’s ruling, White House Counsel Fred Fielding sent a letter to House Judiciary Committee Chairman John Conyers requesting a meeting to negotiate possible parameters for the testimony of Miers and Bolten.

However, House counsel Irv Nathan said at the time that negotiations with the White House have been "completely useless."

"We have not found willing partners on the other side of the table," Nathan said. "We're being dunced around here."

Unable to get Bates to issue a st
Two weeks ago, at an appeals court hearing, House counsel Irvin Nathan said Miers has crucial information to help the Judiciary Committee move its probe forward.

But Carl Nichols, the Justice Department’s deputy assistant attorney, said 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 the court with details on how Miers would be harmed if that were to happen.

The House Judiciary Committee subpoenaed Miers and White House chief of staff Joshua Bolten last year, but they were instructed by President Bush to ignore the subpoenas. Bush claimed that Miers and Bolten were immune from congressional subpoenas, protected by the theory of executive privilege.

The House 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.

Miers, Bolten Identified in DOJ Report

Last week, the Department of Justice’s Inspector General and 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.”

Glenn Fine, the DOJ’s inspector general, and H. Marshall Jarrett, the head of the agency’s 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 DOJ’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, the 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 there were some Republicans in his district with close ties to the White House who demanded he launch an investigation into the election and bring charges against individuals for voter fraud, despite the fact there was no evidence to support the claims of vote-rigging.

He said he believes that 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 for voter fraud related to the 2004 governor's election. McKay said he felt he was not being treated fairly, and requested a meeting with then-White House Counsel Harriet Miers to discuss the issue, as well as his application for US district judge in his home state.

"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 and her deputy's comments. "Some believed I should convene a federal grand jury and bring innocent people before the grand jury."

"All of my actions as United States attorney had been coordinated with the Department of Justice," McKay told me. He said he explained that to Miers and Kelley, and informed them that there was no evidence of voter fraud to support launching a federal inquiry into the election.

The meeting with Miers and Kelley did not have a positive impact on McKay's request to be appointed a judge at US District Court. Instead, McKay said it appears that he landed on the so-called list of US 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.

Steve Bell, the chief of staff to Sen. Pete Domenici, R-NM, expressed dissatisfaction with the state’s U.S. Attorney David Iglesias, contacted Bolten, according to one previously undisclosed email included in the report, because he would not prosecute alleged voter fraud cases. Bell allegedly asked Bolten whether the White House could intervene, according to the report.

Still, Bolten and Miers 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 supposedly has subpoena power, something that Fine and Jarrett lacked, and she is charged with investigating whether any DOJ 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 DOJ in 60 days.