CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 28, 2008

DOJ Responds to Privilege Ruling in Congress' U.S. Attorney Investigation

Congress and the Bush administration headed for a pre-election showdown Wednesday over executive privilege, with House Democrats scheduling a hearing that would put a key 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 Bates that aims to force the Bush administration to cooperate with a congressional investigation into the politically charged firing of nine U.S. attorneys in 2006, including Seattle's John McKay.

The move came as Democrats pushed ahead with that investigation, and Rep. John Conyers, Jr., D-Mich., chairman of the House Judiciary Committee, said he was calling former White House counsel Harriet Miers to appear before the committee Sept. 11 to answer questions about her role in the firings.

Conyers also set a deadline of next Thursday for the administration to hand over White House documents concerning the firings and a log detailing what documents it was withholding because of security concerns and why.

Some legal experts said they doubted the Justice Department would succeed in persuading the federal appeals court in Washington to intervene in the matter.

But it was also unclear what questions Miers would choose to answer if she takes the witness chair, and that raised the possibility of further legal wrangling.

Some 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."

Bates 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, who was appointed by Bush, 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.

Read full article here. [Brooks Holland]

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