New Justice Department Push To Keep Bush Aides From Testifying

The Justice Department filed papers in court late Monday asking a federal judge to temporarily set aside his own order directing White House officials to testify before Congress about the firings of nine U.S. attorneys.

The filing was in response to a July 31 opinion by U.S. District Court Judge John D. Bates that the Bush administration's claims of executive privilege in refusing to allow White House officials to testify about the firings was "unprecedented" and "entirely unsupported by existing case law."

The Bush administration action indicates that despite recent correspondence to Congress suggesting otherwise, it is still strongly resisting subpoenas of White House officials to testify about the politically sensitive issue of the firings of the U.S. attorneys.

In his decision, Bates said he doubted that if the White House or administration appealed his decision, they would have an even remote possibility of prevailing:

"The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett] Miers [one of those subpoenaed] is absolutely immune from compelled testimony."

In the past, the Supreme Court had reserved claims by presidents of absolute immunity only for "very narrow circumstances" such as for issues of national security or foreign affairs, Bates wrote in his opinion. Testimony about the firings of U.S. attorneys was not in that class and therefore there was little likelihood that a higher court would reverse his decision, he noted.

President Bush has said that he refuses to allow former and current top aides to testify about the firings not because his administration has anything to conceal, but because he believes in upholding the principle of executive privilege, partly for the sake of future presidents.

Congress, however, has overwhelmingly voted to compel such testimony.

In February, the House of Representatives voted 223-32 to hold Miers and White House chief of staff Joshua Bolten in contempt of Congress for refusing to testify and provide documents about the U.S. attorneys to the House Judiciary Committee. Both the House and Senate Judiciary Committees have similarly approved contempt citations for former White House chief political aide Karl Rove.

After Judge Bates' decision, White House counsel Fred Fielding said in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the White House wished to await an appeal of Bates's decision before even "entertaining any requesting for Mr. Bolten's compliance with the Senate Judiciary Committee subpoena."

Such an appeal would mean that the aides would almost certainly not testify before the current Congress and not until a new president is in office next year.

But Fielding seemingly reversed course last week, informing the House Judiciary Committee that the White House now wished to negotiate with Congress about possible testimony.

In a letter to House Judiciary Committee Chairman John Conyers (D-MI), Fielding wrote that members of their respective staff meet as "early as" possible to "re-commence discussing possibilities for reaching an accommodation between the Branches on this matter." Emmett Flood, the president's special counsel on executive privilege issues, also wished to contact the House committee's counsel "as soon as possible."

The appeal by the Justice Department suggests, however, that the Bush administration at a minimum is attempting to obtain a stronger negotiating position with Congress, if not entirely delay compliance with congressional subpoenas until next year. (The Justice Department filing states that a stay of Judge Bates's order is "the best hope of promoting an accommodation between the two branches.")

The request for a stay also comes not long after a report in the Huffington Post that former Bush administration officials in the Justice Department's Civil Rights Division have refused to voluntarily talk to investigators with the Department's Inspector General about the politicization of the Civil Rights Division. Because of their refusal to voluntarily talk to investigators, the Department has taken the extraordinary step of subpoenaing senior attorneys once from within its own ranks to testify before a federal grand jury as a means to compel their cooperation.

If Bates' previous opinion is any guide, it appears unlikely that he would agree to the Justice Department's requests. In his 93-page opinion, Bates, a conservative jurist appointed by President Bush in 2001, wrote:

"Presidential autonomy, such as it is, cannot mean that the executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress' historical oversight function."

Related:

Murray Waas, "Former U.S. Attorney Condemns Bush White House Interference With Renzi Probe," Huffington Post, Aug. 12, 2009.

Stephanie Woodrow, "Rove Aide Asked Miers to Help Clear Republican's Name," Main Justice, Aug. 12, 2009.

Murray Waas, "Justice Done at Justice: U.S. Attorney Fired by Bush Administration Rehired for Old Job by Obama," personal blog, Aug. 1, 2009.

Murray Waas, "Bush Administration Leaks Bolstered Rep. Renzi's Reelection Bid," the Hill, June 24, 2009.

Eric Alterman and Danielle Ivory, "Think Again: Blogosphere to Mainstream Press: Get Off the Bus," Center for American Progress, May 21, 2009.

Murray Waas, "Torture Memo Author Advocated Presidential Pardons, Jury Nullification," Huffington Post, May 6, 2009.

Anna Schecter and Murray Waas, "DOJ Official Breached Ethics Laws," ABCNews.com, May 1,2009.

Murray Waas, "A U.S. Attorney's Story," the Atlantic, April 20, 2009.

Murray Waas, "The Big Stone Wall: Nine Bush-Era Officials Refused to Cooperate with DOJ Probes," TPM Muckraker, Feb. 18, 2009.

Murray Waas, "U.S. Attorney Scandal: Feds Probe Domenici for Obstructing Justice in Iglesias Firing," TPM Muckraker, Feb. 4, 2009.

Damozel, "Rove to Cooperate?... or Not," Buck Naked Politics, Feb. 3, 2009.

Murray Waas, "Attorney: Rove Will Cooperate With DOJ Probe," TPM Muckraker, Feb. 2, 2009.

Murray Waas, "Cheney's Admissions to the CIA Leak Prosecutor and FBI," personal blog, Dec. 23, 2008.

Murray Waas and Justin Rood, "Report: White House Involved in U.S. Attorney Firings," ABCNews.com, Sept. 29, 2008.

Murray Waas, "Bush Appointees Attempted to Thwart U.S. Attorney Probe," personal blog, Sept. 28, 2008.

Murray Waas, "The Case of the Gonzales Notes," the Atlantic, Sept. 26, 2008.

Murray Waas, "What Did Bush Tell Gonzales?," the Atlantic, Sept. 26, 2008.

Glenn Greenwald, "Salon Radio: Murray Waas," Salon.com, Sept. 26 2008.

Murray Waas, "U.S. Attorney Scandal Enters White House Circle," Huffington Post, Aug. 7, 2008.

Murray Waas, "Justice Department Subpoenas Its Former Lawyers in Civil Rights Probe," Huffington Post, Aug. 6, 2008.

Murray Waas, "Dog Days of Summer and Executive Privilege," personal blog, Aug. 7, 2008.

Murray Waas, "Special Prosecutor A Possibility As U.S. Attorney and DOJ Politicization Probes Reach Into the White House," personal blog, Aug. 7, 2008.

Anna Schecter and Murray Waas, "DOJ Official Fired In Wake of ABC News Investigation," ABCNews.com, June 25, 2008.

Murray Waas and Anna Schecter, "Bush White House Pushed Grant for Former Staffer," ABCNews.com, June, 24, 2008.

Murray Waas, "Attempted Intimidation of Career Justice Department Employees," personal blog, June 10, 2008.

Brian Ross, Anna Shecter, and Murray Waas, "Justice Department Official Awards $500,000 Grant to Golf Group," ABC News, June 9, 2008.

Murray Waas, "Justice Department Reopens Probe into Warantless Domestic Spying," Huffington Post, Nov. 13, 2007.

Murray Waas, "Justice Department Sought Guilty Plea in NSA Leak Case," Huffington Post, Oct. 19, 2007.

Murray Waas, "Gonzales Investigated Subordinates Who Were Likely to Testify Against Him," Huffington Post, Oct. 17, 2007.

Murray Waas, "The Ninth Man Out: A Fired U.S. Attorney Tells His Story," Huffington Post, June 4, 2007.

Murray Waas, "Scales of Justice," National Journal, May 31, 2007.

Liz Halloran, "A Muckraker's Day in the Sun," U.S. News & World Report, May 15, 2006.

Murray Waas, "Administration Withheld Emails About Rove," National Journal, May 10, 2007.

Murray Waas, "Justice Official Was Directed to Call Fired Prosecutors," National Journal, May 3, 2007.

Murray Waas, "Secret Order by Gonzales Delegated Extraordinary Powers to Aides," National Journal, April 30, 2007.

Frank Rich, "When Will Fredo Be Whacked?," New York Times, March 25, 2007.

Murray Waas, "Internal Affairs," National Journal, March 15, 2007.

Howard Kurtz, "Reporters in Glass Houses," Washington Post, April 17, 2006.

Jay Rosen, "Murray Waas is Our Woodward Now," PressThink, April 9, 2006.

Dan Froomkin, "A Compelling Question," Washington Post, March 31, 2006.

Jim Boyd, "Why Courage is Hard to Find," Nieman Reports, Summer, 2006.

Murray Waas, "Writing Letters," New York Sun, July 19, 2006.

Murray Waas, "Bush Blocked Justice Department Probe," National Journal, July 18, 2006.

Murray Waas, "What Ashcroft Was Told," National Journal, June 8, 2006.

Shane Harris and Murray Waas, "Justice Department Probe Foiled," National Journal, May 25, 2006.

Howard Kurtz, "Reporters in Glass Houses," Washington Post, April 16, 2006.

Frank Rich, "Dishonest, Reprehensible, Corrupt...," the New York Times, Nov. 27, 2005.

Murray S. Waas, "Jack Anderson: An Appreciation," the Village Voice, Oct. 13, 2005

Amy Goodman, "How Dick Cheney's Top Aide Misled Federal Prosecutors in the CIA Leak Case," Democracy Now!, Oct. 12, 2005,

Murray Waas, "House Intelligence Committee Votes Down Plame Resolution of Inquiry," Whatever Already!, Sept. 15, 2005.

Murray Waas can be reached at [e-mail]. One can also follow his work through his Facebook account or on twitter.

Comments

[LITU]

GOP mantra: "Gee, if you don't have anything to hide..."

[Donns]

Does anyone seriously think anybody in the government is going to get into any sort of serious trouble for their crimes? No law applies to those inside the beltway, only to the rest of us. Who in the world are we kidding, only ourselves if we think anything is going to come of any of the crimes of the past (or present, or future). Give up people you are owned by these people. Get on with trying to make a living in spite of them but do not go vote for one of them in November.

[Joeinloth]

Why the Dems didn't raise more of a fuss over Mukasey's appointment, I'll never know. Hey, pick up the ol' Funk & Wagnalls and look up "opposition party"!

[OgreDaddy]

The American People should appoint Vincent Bugliosi as " The People's Special Prosecutor"

It is clear that the Bush administration is circling their wagons attempting to run out the clock, knowing full well that they face conspiracy charges and obstruction of justice at the very least.
Investigations will also reveal fraud, money laundering and probable cause to indict Bush Cheney, Rumsfeld and Rice for capitol murder charges as well as violations of international torture statutes.

We already know the Neocon hawks cherry picked intelligence to sell their war in Iraq, but now we also know they lied about the source of the Anthrax attacks
using government funded fear propaganda to manipulate public opinion and the deceive Congress and the American People.

Not only has this political mafia lied to involve us in military conflict, but they have done so to deliberately fleece the American people of their national treasure and shamed
our moral high ground on a global scale.

As a steadfast Constitutional Conservative I DEMAND that these criminals stand before the American
people in OPEN Congressional hearings and then in a court of law.

We must make an example of these criminals for the sake of all future generations and to show the world that we will not stand for it ever again!

[landmine]

Right on!
You are better than a cup of coffee.

[darthdarcy]

Just like any Mafia they can't afford to let anybody, talk to anybody, about anything, ever...!

Simple as that..!

[watchingthings]

Bush does need to be charged with crimes against humanity if we are somehow going to end this millenium on a positive note.

[PackyJ]

Am I the only person who thinks that Dubya looks like Alfred E. Neuman in the pic accompanying this post?

[watchingthings]

How can you allow anyone to testify that Bush is a war monger? The people in Congress would never allow this......sofar, business as usual.....Pelosi's hands seem to be as bloody as those of Bush.

[Amalek]

The integrity of our justice system is the keystone of the American way of life. Conservatives should appreciate this more than liberals, and be the first to throw the Bush people under the bus.

[realpolitic]

Bush just wants to conceal his own criminality. That reality is becoming apparent even to the courts. Bush knows he is already considered the worst president in history and does not care. He knows he can only sink much lower and can not go any higher in public and historical opinion. If we do not undercover Bush's criminality this year, I hope we will the first year of the Obama administration.

[watchingthings]

where do all the people's lives he has taken fall into this mess? He may say he is sorry that [so and so died]. If he was honest...he would tell then...it was over lies...like he alwasys did in school....except that this time...he sent his countrymen to fight a Lie...maybe a dream of his.....or a combination of both. They died for a lie!

[GrainOSand]

"…Bush has said that he refuses to allow former and current top aides to testify about the firings not because his administration has anything to conceal, but because he believes in upholding the principle of executive privilege, partly for the sake of future presidents."

Why is Mr. Obama not utilizing the above rubbish to his advantage? As a potential future president, why does he not come out and say that he would not want such a tainted gift of circumvention of long established executive principle and corresponding law? Would that be considered bad taste? There is no way McCain has the right answer on this issue for he is Bush incarnate. I see real potential in waging war over this.

It is understood that Americans of good conscience are peeved about this brazen flouting of law by the criminally minded Bush administration. It is understood that hypocrisy in the White House is making many question just what this country is, and who is actually running things.

Mukasey is lazy, hazy, and what he continues to get away with amazes me. The gentleman is no beacon of hope and no stalwart defender of justice. He is a compromised zealot of deception and devious tendencies. He is in bed with Bush and they are entangled in the passion of their criminal lust. A sight that does inspire or excite, it simply disgusts, those of us who say bring down the curtain on this perverse farce. We have seen more than enough.

[Destin]

No doubt, there's no Justice to be found anywhere in or near the Justice Department, lol.

[cayuse1]

Does anyone remember what Republican corruption was being covered up by firing the Attorneys

Amazing how we always free the criminals and punish the victims

Cannot be much for minor Employment Labor Law violations

Let's get them for the corruption

[Boboday555]

Attention all state-side Bushies!
Your un-constitutional 8 year hoot-nanny is just about over!
But all Y'ALL state-side Bushies could turn it around for the GOP!
If Y'ALL finally enlisted, to back up 'yer' big, bad tough guy talk, y'all just might turn things around in Eye-Raq and maybe your sawed off little Arizona K-Street candidate will have better than a literate's chance in Mississippi of winning come November!
Short of that, your party is pretty much finished!

Now Go Enlist: AWOL Bush Needs Y'all!

[Mercedes]

Bush is just stalling for time. Once January 20, 2009 comes, Bush will either leave the White House and jump on a private jet for his hideout in Paraguay, or he will declare Martial Law and deny Obama the keys to the White House and then say that NO ONE will EVER have to testify or show up under a subpoena as long as he's the 'decider'..