Give-and-Take on Executive Privilege

Last week, the D.C. Circuit granted Miers and Bolton's motion for stay pending appeal and denied the House Judiciary Committee's motion for expedited appeal in Committee on the Judiciary v. Miers and Bolton, the Congressional contempt case against former White House Counsel Harriet Miers and Chief of Staff Josh Bolton for failing to testify and produce documents in the Committee's investigation into the U.S. attorney firings.  The ruling means that Miers and Bolton will not have to testify or produce documents in response to Congressional subpoenas until after the election, and then only if the new Congress continues this investigation (with a new administration in office) and if the courts uphold the district court's ruling rejecting the claim of absolute immunity from compelled Congressional process for senior presidential aides.  (The district court ruled that Miers was not absolutely immune from compelled Congressional process--that she must comply with the Congressional subpoena, but that she may invoke executive privilege "where appropriate"--and that Miers and Bolton ought to provide more detailed descriptions of privileged documents and the basis of their privilege.  The district court later denied Miers and Bolton's motion for stay pending appeal.)  In short, the administration ran the clock; and it worked.

The underlying dispute on the scope of executive privilege is quite interesting, especially given the novelty of the claims.  (The district court wrote that "the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process.")  But perhaps even more interesting is the back-and-forth between Congress, the administration, and finally the courts in defining the scope of Congress's authority to investigate this matter and the assertion of executive authority.  This is a wonderful example of how politics, institutional considerations, and the law mix in often messy ways to give us the doctrine we study in con law--an excellent case study in how con law (especially structural con law) is often made.

The House Judiciary Committee collected the documents here.  The initial exchanges between the Committee (written by Chairman Conyers and Subcommitee Chairwoman Sanchez) and the administration (written by Attorney General Gonzales and White House Counsel Fred Fielding) outline the parties' positions and trace the escalating dispute, from negotiation to breakdown.  After the Committee issued its subpoenas here and here, Solicitor General Paul Clement analyzed executive privilege and advised the president that "executive privilege may properly be asserted."  The House filed its civil contempt complaint; the Committee moved for partial summary judgment; and Miers and Bolton moved to dismiss.

The district court ruled narrowly for the Committee, but the D.C. Circuit's ruling means that Miers and Bolton won't testify--at least for now.  If between the new Congress, the new administration, and reaction to the recent OIG report on the firings, the case becomes moot, the district court will have had the last word on, as it said, this case of "extraordinary constitutional significance."

SDS