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D.C. Circuit Grants Obama (Another) Extension in Subpoena Case
Legal Times
February 24, 2009
The U.S. Court of Appeals for the D.C. Circuit Monday gave the Obama administration another week to decide its course in a case involving one of President George W. Bush's most expansive claims of executive privilege.
The briefing schedule has changed three times in the last two weeks, after two motions by the Justice Department for more time to allow for an out-of-court settlement in the House of Representatives' lawsuit against former White House counsel Harriet Miers and chief of staff Joshua Bolten. The Justice Department now has until March 4 to file its opening brief in the case.
The House sued last year for documents and testimony related to the firings of nine U.S. Attorneys. Bush asserted that his former aides are absolutely immune to congressional demands, a position he maintains to this day, even after exiting office. U.S. District Judge John Bates rejected the claim, setting up the appeal. The Justice Department's opening brief in the case was originally due on Feb. 18, but the department filed a motion for a two-week extension on Feb. 15, citing ongoing negotiations among White House Counsel Gregory Craig; Bush's lawyer, Emmet Flood; and House General Counsel Irvin Nathan.
The court partially granted the request, ordering the department to produce its original brief by Wednesday. The department immediately filed a motion to reconsider, again imploring the court to consider the severity of the separation-of-powers issues raised in the case, as well as the introduction of new parties at the bargaining table -- the former president and his lawyer.
"The inauguration of a new president has altered the dynamics of this case and created new opportunities for compromise rather than litigation," wrote acting Assistant Attorney General Michael Hertz in a motion filed last week. "At the same time, there is an additional interested party -- the former President -- whose views should be considered."
Hertz described the discussions as "complicated and time-consuming."
The D.C. Circuit panel -- composed of Chief Judge David Sentelle, Judge Douglas Ginsburg and Judge A. Raymond Randolph -- gave no explanation for its change of heart in granting the full extension.
The House has also subpoenaed Bush's former chief adviser, Karl Rove, for testimony in connection with the U.S. Attorney firings and the prosecution of former Alabama Gov. Don Siegelman. Any settlement would involve him as well. His lawyers have said he is not opposed to testifying, but days before leaving office Bush's White House counsel, Fred Fielding, sent letters to Rove, Miers and Bolten, instructing them to continue to ignore congressional demands for information about anything they did while at the While House.
Lawyers familiar with the negotiations say they will likely result in testimony from all three three aides in some form. Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, has continued to press for sworn testimony before the committee.
This article first appeared on The BLT: The Blog of Legal Times.
