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DC Circuit grants permanent stay blocking forced testimony on US Attorney firings

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website; JURIST news archive] on Monday stayed [opinion, PDF] a district order requiring senior Bush administration officials to give the House Judiciary Committee [official website] information about the forced resignations of nine US attorneys [JURIST news archive]. In July, a federal district judge rejected claims of executive privilege [JURIST report] by former presidential counselor Harriet Miers [Washington Post profile] and current White House chief of staff Joshua Bolten [official profiles], requiring Miers to testify before the committee and ordering Miers and Bolton to honor committee subpoenas for documents. Miers and Bolton sought a permanent stay [JURIST report] of those orders pending an expedited appeal to the DC Circuit. A three-judge panel granted the stay but denied the motion to expedite, writing that the matter could not be adjudicated before the current Congress adjourns. According to the per curiam opinion,

[t]he present dispute is of potentially great significance for the balance of power between the Legislative and Executive Branches. But the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch - including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court - before the 110th Congress ends on January 3, 2009. 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 on an expedited briefing and oral argument schedule. If the case becomes moot, we would be wasting the time of the court and the parties.... If the case does not become moot despite the expiration of the subpoenas ... there would be no pressing need for an immediate decision.... This course has the additional benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit.
House Judiciary Committee Chairman John Conyers (D-MI) [official website] said the committee would appeal the decision. AP has more. The Washington Post has additional coverage.

In February, the House voted [JURIST report] to hold Miers and Bolten in contempt of Congress [Cornell Law backgrounder] for refusing to comply with the committee subpoenas. The House also authorized the committee to bring suit [JURIST report] against Miers and Bolton, as it did in March. Last week, US Attorney General Michael Mukasey appointed a prosecutor [JURIST report] to determine whether criminal charges are warranted in connection with the dismissals of the US attorneys, as recommended in a report by US Justice Department investigators. The report [PDF text] found "significant evidence that political partisan considerations were an important factor" in the 2006 dismissals and further determined that former Attorney General Alberto Gonzales made a series of "inaccurate and misleading" statements about the removals.

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