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Courtesy The Public Record

A federal court judge on Tuesday denied the Justice Department’s request for a stay pending an appeal over a decision issued last month that said former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten were not immune from congressional subpoenas.

The Justice Department went back to federal court last week to urge U.S. District Court Judge John Bates to issue a stay of the order he issued last month pending the DOJ’s appeal of his ruling.

Bates, however, denied the request. His ruling means Miers will have to appear before the House Judiciary Committee to discuss to testify about the role the White House played in the decision to fire nine U.S. attorneys in late 2006. Additionally, the committee sought an inventory of documents from Bolten related to the attorney purge. Bates said the administration would have to fulfill that request.

“The Court will deny the Executive’s request for a stay,” Bates ruled Tuesday. “Hence, the Executive should respond to the document aspect of the subpoenas by producing non-privileged material and identifying more specifically the materials it is withholding on a claim of executive privilege.

“It is on Ms. Miers’s appearance that the dispute principally focuses. This decision should not, however, foreclose the parties’ continuing attempts to reach a negotiated solution. Both sides indicated that discussions regarding an accommodation have resumed.”
Bates’s ruling said the White House “has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question “so serious, substantial, difficult and doubtful,” as to warrant suspending the effect of the July 31st Order pending appeal.”

“The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important,” Bates wrote. “But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important — primarily because it involves the relationship of the political branches — does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee.”

Three weeks ago, White House Counsel Fred Fielding sent a letter to House Judiciary Committee Chairman John Conyers requesting a meeting to negotiate Miers and Bolten’s congressional testimony in light of Bates’s ruling.

In his letter to Conyers following Bates’s ruling, Fielding said the White House was interested in working “cooperatively to resolve these issues.”

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