Despite the Justice Department's plea for more time, the U.S. Court of Appeals for the D.C. Circuit today gave the Obama administration one week to determine whether to press ahead with President George W. Bush’s assertion that his former aides are absolutely immune to congressional subpoenas.
U.S. District Judge John Bates rejected the claim last year, after the House of Representatives sued to enforce subpoenas issued to former White House counsel Harriet Miers and chief of staff Joshua Bolten to testify and provide documents related to the firings of nine U.S. attorneys.
The case also implicates former White House adviser Karl Rove. House Judiciary Committee Chairman John Conyers (D-Mich.) has subpoenad Rove’s testimony in connection with the U.S. attorney firings and the prosecution of former Alabama Gov. Don Siegelman.
Facing a Feb. 18 deadline, the Obama administration asked the court for a two-week extension to state its position in the case, but the court today ordered the Justice Department to file its opening brief by Feb. 25. The department immediately filed a motion to reconsider (link not available), emphasizing the need for more time to negotiate an increasingly complex range of interests.
“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. "At the same time, there is an additional interested party -- the former President -- whose views should be considered.”
White House Counsel Gregory Craig, Bush’s lawyer, Emmet Flood, and House General Counsel Irvin Nathan have been in talks that could lead to Rove's testimony, as well as document production and testimony from Bolten and Miers. But today's motion to reconsider suggested that a settlement is still a ways off.
Hertz described the discussions as "complicated and time-consuming" but urged the court to allow more time for compromise, pointing to the "sensitive separation-of-powers questions presented in this appeal."
Flood, a former Williams & Connolly partner, served as Bush's special counsel. Before leaving office, Bush appointed him to an obscure World Bank agency called the International Center for Settlement of Investment Disputes.
Obama has urged both sides to settle, but if no deal is reached by Wednesday, the Justice Department must file a brief stating its position or face sanctions by the court. In a July campaign appearance, Obama called Bush's position "completely misguided."