05/23/2010 03:34 am ET Updated Jul 04, 2011

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."

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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.

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