Government lawyers had a deadline—Thursday—to turn over to the House Judiciary Committee certain White House documents related to the ongoing probe of the U.S. attorney firings. Yesterday’s deadline came and went. No documents. But Justice Department lawyers have an answer: the case is temporarily on hold.
On Thursday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a temporary administrative stay of a July 31 district court order that the government is vigorously challenging on appeal. The order, issued by U.S. District Judge John Bates, compels Harriet Miers, the former White House counsel, and Joshua Bolton, the White House chief of staff, to appear under subpoena before the House Judiciary Committee. The government must also turn over White House documents the committee has asked to review.
Justice Department lawyers argue Miers and Bolton are immune from Congressional subpoenas and that ordering their appearance violates separation of powers. Judge Bates disagrees. The government has asked the appeals court to stay Bates’ order pending an appellate court ruling.
In a per curiam order, Circuit Judges Douglas Ginsburg, Raymond Randolph, and David Tatel said the parties must file supplemental memos that address two critical questions: Does the appellate court have jurisdiction and will the case become moot upon the expiration of the 110th Congress?
The House Judiciary Committee must respond by 4 p.m. Wednesday. The government lawyers have a shorter deadline: Monday at 10 a.m. The House Judiciary Committee has scheduled a hearing Sept. 11 at which Miers has been ordered by subpoena to appear. But the case is stayed until further order of the appeals court. The judges said their stay—to give the court time to consider the merits of the government’s position—should not be construed as a ruling on the merits.