Law

White House Seeks Meeting With Conyers to Negotiate Miers, Bolten Testimony

The White House sent a letter to House Judiciary Committee Chairman John Conyers Friday requesting a meeting to negotiate the congressional testimony of two former Bush administration officials.

White House Counsel Fred Fielding requested the meeting one-week after a federal court judge ruled that his predecessor, Harriet Miers, and White House Chief of Staff Joshua Bolten could not legally ignore congressional subpoenas.

Following the judge’s ruling, Conyers said he would seek Miers and Bolten’s testimony after Congress returns from its summer vacation in September. On Thursday, the Department of Justice appealed the ruling.

But in his letter to Conyers, Fielding said the White House was interested in working “cooperatively to resolve these issues.”

“Toward that end, and hopefully as a prelude to meaningful discussions between us, I propose that members of our respective staffs meet as early as next week to re-commence discussing possibilities for reaching an accommodation between the Branches in this matter,” Fielding wrote Friday in his letter to Conyers.

“As I know you appreciate, this litigation is very important in determining constitutional contours governing certain relations between the Executive and Legislative Branches in the Congressional oversight setting,” Fielding wrote. “Accordingly, the Department of Justice has now filed an appeal in this matter, and is also seeking a stay of the decision pending review by the U.S. Court of Appeals for the D.C. Circuit.

“That course of action will provide appellate consideration of the novel questions at stake in this matter and will enable the parties to obtain, if it should prove necessary, a final decision in this important matter…However, the fact that the Executive has notice an appeal in this matter does not signify that we think further litigation is the exclusive path forward.”

Conyers said Friday he’s “glad” that Fielding has agreed to meet with him to try and reach a compromise. He added “given the lateness in the Congress, I do not believe a stay of Judge Bates’ order is necessary or appropriate.”

But the White House could still drag the matter out until the end of Bush’s term at which time the subpoenas for Bolten and Miers will expire.

The House voted last year to hold Miers and Bolten in contempt after they refused to appear before the Judiciary Committee to testify about the White House’s role in the firings of nine U.S. attorneys in December 2006. It was the first time in 25 years a full chamber of Congress voted on contempt of Congress citation.

President George W. Bush has issued a blanket waiver of executive privilege in blocking members of his administration to testify before Congress on numerous scandals that engulfed the White House over the past seven years.

However, U.S. District Judge John Bates said the White House’s legal argument of executive privilege was not based on the law. Bates said Miers could invoke executive privilege on a question-by-question basis. But he said Miers must comply with the congressional subpoena to exercise that right.

“… The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote in a 93-page opinion. “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.

“The aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”

In the past, the White House said it would only allow senior administration officials to speak to Congress about issues such as the U.S. attorney firings in private, without a transcript and not under the penalty of perjury.

Documents released by the Department of Justice last year shows that Miers was briefed by DOJ officials about the decision to purge the U.S. attorneys and was aware that the DOJ would cook up a bogus story to explain the reason behind the dismissals.

Indeed. In February 2005, Miers suggested to Kyle Sampson, then chief of staff to Attorney General Alberto Gonzales, that perhaps all 93 U.S. attorneys should be fired.

That idea was rejected, but Sampson spent nearly two years working on a list of U.S. attorneys to purge on the basis that they were disloyal. All 93 federal prosecutors were ranked by “loyalty to the President and Attorney General.”

Sampson, who was singled out in a report by the Justice Department’s Inspector General two weeks ago for violating civil service laws by using a political litmus test to guide his hiring decisions at the agency, wrote to Miers suggesting “a limited number of U.S. Attorneys could be targeted for removal and replacement.”

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