Monday did not bring good news for the House Judiciary Committee. A federal appeals court has delayed the testimony of Harriet Miers and Josh Bolten, in the latest ruling (pdf) in the epic back and forth between the executive and legislative branches. The decision pushes the issue into the next administration.

From the AP:

Time will run out on this year's congressional session before the battle between two branches of government can be resolved, according to the ruling by a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling essentially pushes any resolution on the politically charged case until next year.
"The present dispute is of potentially great significance for the balance of power between the legislative and executive branches," wrote the panel of judges, two of whom were appointed by Republicans.

Still, the judges wrote, "Even if expedited, this controversy will not be fully and finally resolved by the judicial branch ... before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire."

HJC Chairman John Conyers (D-MI) has already indicated that the committee will appeal, but did not give a timeline.

"While the delay caused by this incorrect decision is unfortunate, at the end of the day, I believe Judge Bates' decision will be affirmed and that Harriet Miers and other key witness will appear before the House Judiciary Committee, and that we will get to the bottom of the Bush administration's disgraceful politicization of the Justice Department," said Conyers in a statement.

Now that the dust has settled on the U.S. attorney firings report, released Monday morning by the Department of Justice's Office of the Inspector General, we thought it was worth taking some time to lay out what it tells us.

Almost since the scandal broke early last year, there have been clear signs that the plan to fire U.S. attorneys as a means of advancing the Bush administration's political goals was being driven by the White House. That impression has been strengthened as top current and former White House officials, including Karl Rove and Harriet Miers, have consistently stonewalled efforts to look into the matter.

The OIG investigation was no exception. As the report notes, Miers, Rove and several other Whte House officials refused to talk to investigators, and the White House wouldn't provide internal emails or documents relating to the firings. Perhaps the most crucial of the documents denied to OIG was a memo, written in March 2007, which contained the results of an internal White House investigation into the firings, conducted by associate White House counsel Michael Scudder. Scudder had interviewed top DOJ and White House officials, including Rove, and had compiled a timeline that "appeared to contain information we had not obtained elsewhere in our investigation," according to the OIG report.

Still, a close examination of the report makes clear that, although on a day-to-day basis the plan was put into effect by mid-level DOJ political appointees -- enabled by a shocking lack of oversight from top department officials, principally former Attorney General Alberto Gonzales -- the impetus for the move came straight from 1600 Pennsylvania Avenue. Many of the individual pieces of information have been previously reported, as DOJ provided emails and internal documents to Congress for its 2007 investigation. But the OIG report provides a far clearer sense of the longer-term trajectory of the plan, and the consistent interest in it from Miers and Rove, than we've yet been offered.

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In the almost two years that TPMmuckraker has been covering the scandal over the removal of the U.S. attorneys, there have been many questions raised over the reasons behind the firings. On Monday, the Justice Department's Office of the Inspector General's report answered some of those, but raised others. While it concluded that only three of the firings were carried out for political reasons or to interfere with active prosecutions, it could not gather sufficient evidence to conclude the rest of the firings were politically based. Regardless, the report strongly condemned the DOJs overall mishandling of the firings, calling the process "fundamentally flawed . . unsystematic and arbitrary."

As we wrote earlier this week, the report reveals that Todd Graves, David Iglesias and Bud Cummins were fired for reasons of politics, not performance.

The report lays out the investigations into each of the remaining U.S. attorney firings, but repeatedly states that its analysis and investigation were "hindered" due to many witnesses' "lack of recall"; the refusal of many witnesses to cooperate with the investigation or give testimony; and the administration's stonewalling in disclosing documents. Citing these obstacles, the report hedges its findings, requesting a prosecutor to continue the investigation with the power to compel testimony.

In the case of Margaret Chiara, the former Western Michigan U.S. attorney, the report could find no evidence that the rumors that Chiara was in a lesbian relationship with one of her subordinates were behind her removal.

Chiara has stated publicly that she believes the rumors -- which she called "false and malicious" in a statement yesterday from her attorney -- were the reason for the loss of her position.

Carol Lam, the U.S. attorney in the Southern District of California, was believed to have been asked to resign over her prosecution of former Executive Director of the CIA, Dusty Foggo and Brent Wilkes, a defense contractor who bribed former Republican Rep. Duke Cunningham and Foggo. But the report "found no evidence" to support those claims, stating that "the investigation and prosecution of Cunningham and Foggo were aggressively pursued by career prosecutors in Lam's office, both during and after her tenure."

Instead, the report supports the Department's previous claims that Lam was removed because of her poor statistics on gun and immigration prosecution statistics -- but blames the DOJ for poor handling of her removal.

In the case of Daniel Bogden of Nevada, little was known about his removal, except that he had not been diligent in prosecution of obscenity cases. The report found the claim to be behind Bogden's removal, but added some color to the removal. Interestingly, the report found that the complaints of Bodgen's dalliance in obscenity prosecutions were made by Brent Ward, the head of the DOJ Obscenity Prosecution Task Force -- who was friends with Attorney General Chief of Staff Kyle Sampson's brother and had direct conversations with Sampson regularly.

When questioned by the DOJ, Sampson stated he "did not recall whether those complaints played a role in the decision to remove Bogden," a response the report found "particularly suspect, given his role in the removal process."

In Arizona, Paul Charlton's termination was believed to be connected to his investigation of Republican Rep. Rick Renzi, but the report states that it could find no evidence to support that claim. Charlton had previously clashed with Main Justice on a decision he made to not seek the death penalty on a case involving a murder that transpired during a drug deal. Charlton believed it was this death penalty case as well as his policy of tape recording interrogations that led to his removal -- theories the IG report confirmed as the primary reasons for his dismissal.

Lastly, there is Seattle's John McKay who was believed to have been fired over his failure to prosecute voter fraud related to the 2004 Washington governor's election.

McKay famously received a call from Ed Cassidy, chief of staff to Washington Rep. Richard Hastings (R) asking about his prosecution, to which McKay responded, "Ed, I'm sure you're not about to start talking to me about the future direction of this case," after which Cassidy quickly ended the call.

Hastings claimed ignorance and told investigators that "he could not remember telling Cassidy to call McKay. . . or whether Cassidy had told him he had done so."

The report also mentions a meeting in Washington between McKay and White House Counsel Harriet Miers in which Miers reportedly asked McKay "why Republicans in the state of Washington were angry with him."

The report concludes that the "evidence suggests" that the primary reason for McKay's removal was an argument with Deputy Attorney General Paul McNulty over an information sharing program -- not because of failure to prosecute voter fraud as McKay conjectured.

The OIG report, though nearly 400 pages long, is far from comprehensive. The investigation lacked the power to compel testimony or documents outside of the Justice Department and were consequently limited in their investigation. As a result, the report is forced to reserve judgment on whether many of the firings were inappropriately political, though it recommends that a prosecutor be appointed to look into whether crimes were committed.

Nora Dannehy, appointed on Monday by Attorney General Michael Mukasey will take up that mantle. It remains to be seen if that will be enough to ferret the truth out of unwilling witnesses and departments.

The just-released IG report on the US attorney firings lists the removal of David Iglesias as the "most troubling" of the eight. But it notes that thanks to stonewalling by the White House, DOJ officials, and the office of Sen. Pete Domenici, investigators didn't have access to the complete range of information on the reasons for the firing.

The report concludes that Iglesias was removed as a result of complaints brought to DOJ by New Mexico GOP members of Congress and party activists, and shows that Karl Rove knew in advance of the decision. It reveals that at a meeting on November 15, 2006, Rep. Heather Wilson told Rove: "Mr. Rove, for what it's worth, the U.S. Attorney in New Mexico is a waste of breath." Rove's response: ""That decision has already been made. He's gone."

But it states that IG investigators were unable to determine how Rove knew this (Iglesias wasn't notifed until December 7), and what his possible role in the decision was, because Rove and White House counsel Harriet Miers refused to cooperate with the investigation.

Similarly, it notes that Kyle Sampson, who as chief of staff to Alberto Gonzales took the lead in bringing about the firings, gave "misleading after-the-fact explanations for why Iglesias was placed on the list." The report concludes: "[W]e question whether Sampson provided us the full story about Iglesias's placement on the list, as well as the reasons for other U.S. Attorney removals."

And: "Our investigation was also hindered by the refusal of Senator Domenici and his Chief of Staff to agree to an interview by us." (In April, Domenici, who is retiring this year, received a "qualified admonition" from the Senate ethics committee for his role in the firing.)

Looks like the across-the-board effort to withhold information from the IG investigators was perhaps at its most intense in regard to the Iglesias firing.

The latest in the back and forth between Harriet Miers and the House Judiciary, from the AP:

A federal appeals court has blocked former White House counsel Harriet Miers from testifying about the firing of nine U.S. attorneys until judges decide whether they have authority to wade into a battle that pits Congress against the Bush administration.

Miers is supposed to testify at a House Judiciary Committee hearing next Thursday.

. . . The three-judge panel gave House lawyers until 4 p.m. next Wednesday to make its case on why the court should uphold an earlier ruling forcing Miers to testify. The Justice Department must submit its own argument -- why she should not -- two days earlier, on Monday.

We have the order here, full text after the jump.

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Could the White House be getting desperate in its dramatic legal battle with the House Judiciary Committee? It certainly looks that way, as they scramble to delay Harriet Miers' congressional testimony after the court's recent denial of their request for a stay.

Yesterday, HJC Chairman John Conyers (D-MI) set Miers testimony for September 11, but the administration isn't going down without a fight.

From the AP:

The Bush administration had already indicated it would appeal but Justice Department lawyers said Wednesday that they will ask the court to step in quickly and temporarily put Miers' appearance on hold while the appeal plays out. It's a risky move for an administration that has spent years trying to strengthen the power of the presidency.

Yesterday, TPM's David Kurtz caught up with Senate Judiciary Chairman Patrick Leahy (D-VT) at the Democratic National Convention and got his take on the new developments in the Miers case unfolding at the HJC.

Leahy made it clear that this battle wasn't just going to end in the event of an Obama presidency. "I remind them," he said, "I'll still be chairman next year."

Yesterday, a District Court judge denied the White House's request for a stay on the Congressional testimony of Harriet Miers and Josh Bolten in the US attorney case.

Emboldened by that ruling, House Judiciary Committee chair John Conyers (D-MI) announced in a press release this afternoon that his office has sent a letter to the White House setting a deadline of September 4 to comply with the judge's order to produce documents relating to the case. The letter also says that the date for Miers to appear at a hearing has been postponed until September 11.

The quest to find out the extent of the White House's role in the scandal continues...

A district court judge denied Harriet Miers and Joshua Bolten's request for a stay on their Congressional testimony pending the appeal of the recent decision in HJC v. Harriet Miers et al. The decision means that Miers will have to appear in response to the House Judiciary Committee's subpoena for testimony.

From the ruling:

Accordingly, the Court will deny the Executive's request for a stay. Hence, the Executive should respond to the document aspect of the subpoenas by producing non-privileged material and identifying more specifically the materials it is withholding on a claim of executive privilege.

But it is on Ms. Miers's appearance that the dispute principally focuses. This decision should not, however, foreclose the parties' continuing attempts to reach a negotiated solution. Both sides indicated that discussions regarding an accommodation have resumed.

The judge, the Honorable John Bates, has mentioned before that he would really appreciate it if these two parties tried to keep every little squabble out of the court room, and that seemed to be the gist of his ruling:

Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch would not be necessary.

As it stands, however, the Court must decide the questions presented to it. But there is still ample time for the parties to reach an accommodation. The Court's July 31, 2008 Order does not compel Ms. Miers to appear at any particular date.

Technically, this leaves open the possibility of continued negotiations, but considering this administration's history of fighting subpoenas, we're not holding our breath for an out-of-court resolution.

Late update: House Judiciary Committee Chairman John Conyers (D-MI) has responded to the ruling:

"Today's ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization this Congress. I am heartened that Judge Bates recognized that the public interest in this matter is best served by the furtherance of the Committee's investigation," Conyers said. "The Committee intends to promptly schedule a hearing with Ms. Miers and stands ready as always to consider any reasonable offer of accommodation with the White House."

Harriet Miers, former White House counsel, one-time Supreme Court nominee and current partner at Locke Lord Bissell & Liddell, can now add lobbyist for the Pakistan People's Party and the Embassy of Pakistan to her resume, according to documents filed with the DOJ earlier this month.

In May of this year, Locke Lord Strategies signed a one-year $900,000 agreement to lobby for the Embassy of Pakistan. On her foreign agent registration short form, Miers listed the "Embassy of the Islamic Republic of Pakistan, Pakistan People's Party (PPP) and Asif Ali Zardari, Co-Chairperson of PPP and his children" as clients. The group's ongoing work lobbying for the PPP continues on a pro bono basis.

In case you're wondering if this has anything to do with the current events in Pakistan, The Blog of Legal Times has your answer:

What does President Pervez Musharraf's resignation mean for Locke Lord? Probably not much. The firm has represented Asif Ali Zardari, the leader of the Pakistan Peoples Party and an opponent of Musharraf, since March, when the firm was retained to promote democracy and pressure Pakistan's government to investigate former PPP head Benazir Bhutto's assassination.

Things are moving right along in the wake of the HJC v. Miers decision last week.

White House Counsel Fred Fielding has already responded to Rep. John Conyer's (D-MI) letter requesting "quick compliance" with the ruling and an answer to the subpoena issued to White House Chief of Staff Joshua Bolten for documents relating to the politicization of the Department of Justice.

Fielding (predictably) demurred, citing the recent motion for appeal, but he did comply to Conyer's other request: a meeting between the two parties to try to "work cooperatively to resolve these issues." From Fielding's letter to Chairman Conyers:

However, the fact that the Executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive path forward. . . this Administration has responded to more than 650 Congressional inquiries and investigations, and through negotiation and accommodation with Congressional committees has been able to resolve all but a very few of them. . . 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.

Nothing can ever be easy with these two.

The Justice Department, on behalf of Harriet Miers and Joshua Bolten, filed its request for appeal today in the July 31 ruling in House Judiciary Committee v. Miers et al.

While the appeal is resolved, however, the DOJ also requested that the judge grant a stay on the subpoenas, allowing Miers and Bolten to continue to evade the House Judiciary Committee.

From the AP:

Without a quick stay of the ruling, Miers and Bolten may be forced to testify before an appeal can be heard, the two said in a court filing. Democrats have announced they would schedule hearings in September, at the height of election season.

"Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers," the Bolten and Miers request said.

A stay would also benefit Republicans, since the subpoenas expire at the end of the year, not long before Bush leaves office.

Late Update: Also today, White House Counsel Fred Fielding sent a letter to Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, saying that despite the court order last week, the White House will wait for the outcome of its appeal before responding to further subpoena request.

Following the letter sent by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), House Judiciary Chairman John Conyers (D-MI) sent his own demand for the testimony and documents following the ruling yesterday in House Judiciary Committee v. Harriet Miers et al.

In a letter to White House counsel Fred Fielding, Conyers called for "quick compliance" with the ruling and an answer to the subpoena issued to White House Chief of Staff Joshua Bolten for documents relating to the politicization of the Department of Justice.

Conyers also wrote to Miers attorneys, reminding him that the ruling meant his client was "legally required to testify" in answer to Congress' subpoena.

Lastly, Conyers penned a missive to Robert Luskin, Karl Rove's attorney, informing him that his client had been held in contempt of congress by the House Judiciary Committee, but that in light of the recent decision, he hoped that it would not be necessary to carry out the contempt proceedings:

. . .[T]he "precise legal issue" raised by Mr. Rove's claim of immunity from our subpoena as a former White House official was before Judge Bates in Committee on the Judiciary v. Miers. Yesterday's decision in that case provides an unequivocal answer. . . In his letter to me of July 29, 2008, Committee Ranking Member Lamar Smith also noted the pendency of the District Court case and stated that "mr. Rove assuredly will abide by the court's decision when it issues." I trust that this is correct and that there will be no further need to enforce the subpoena through contempt proceedings in the full House, and have directed my staff to contact you immediately so that we can make arrangements for Mr. Rove to testify in September.

Now that we have a partial decision on House Judiciary Committee v. Harriet Miers et al. , maybe it's a good time for a little refresher on why the HJC wanted White House documents and Miers' testimony in the first place.

Miers name came up repeatedly over the course of congressional investigations into the U.S. attorney firing scandal, over her communications with former Chief of Staff to the Attorney General, Kyle Sampson.

Those communications revealed that Sampson and Miers began exchanging emails discussing the dismissal of U.S. attorneys, almost two years before those attorneys were purged from the department in December 2007. In March 2006, Sampson famously sent an email to Miers, ranking all of the sitting U.S. attorneys in order of "loyalty to the Attorney General."

Though Miers initially suggested that all 93 U.S. attorneys be dismissed, Sampson vetoed that idea, with the approval of the Attorney General, and arranged for limited dismissals, ultimately providing Miers with a seven person list of targeted candidates to be considered for removal.

Outside of the emails, others were observing politicization first hand. In the late summer of 2006, U.S. Attorney John McKay, who would be requested to resign just a few months later, described sitting down with Miers and others for an interview on a federal judgeship. McKay was asked, "why Republicans in the state of Washington would be angry" with him in regards to his failure to prosecute allegations of voter fraud in the 2004 Washington gubernatorial race.

A few months before the U.S. attorneys were asked to resign, in September of 2006, Sampson again emailed Miers another list of possibilities, this time with nine people listed.

The majority of this information and correspondence came out in the testimony of Sampson and former Attorney General Alberto Gonzales in front of the Senate Judiciary Committee in the spring of 2007.

Naturally all of this piqued the interest of the House Judiciary Committee, who were also investigating the U.S. attorney firings. They subpoenaed Miers to testify, and requested relevant documents from the White House. Miers and Bolten, on behalf of the White House, both claimed executive privilege in late June, with Miers even refused to show up to the Congressional hearing.

This ticked off House Judiciary Chairman John Conyers (D-MI) who held both Miers and Bolten in contempt. As we discussed yesterday, the contempt vote then went to the full House for a vote, where it was upheld, and the lawsuit was filed.

House Judiciary Committee Chairman John Conyers (D-MI) hailed today's court ruling and said he expects former White House Counsel Harriet Miers and political director Karl Rove to testify on Capitol Hill in September.

"Today's landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law.

Judge Bates' decision makes clear that the Congress had the right to subpoena Harriet Miers to learn of her role in the US Attorney firings, that her claim to be immune from subpoena was invalid and that the Committee was entitled to challenge that claim in Court. The Judge also ruled that the White House may not claim Executive Privilege over documents without describing them in reasonable detail so that these claims of privilege can be evaluated by Congress.

We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims. We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers, as well as ex-White House official Karl Rove, to testify in September"

Later, Senate Judiciary Chairman Patrick Leahy (D-VT) echoed Conyers' statements:

The claims are part of an arrogant White House cover up, designed to shield from public view the inappropriate and illegal actions of this administration. It is past time for senior administration officials to abide by the law and appear before Congress to offer testimony compelled by subpoena.

The House Judiciary Committee has won the first round of its lawsuit against the White House over contempt of Congress in House Judiciary Committee v. Harriet Miers et al.

From the order:

Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff; and Ms. Miers may invoke executive privilege in response to specific questions as appropriate.

and that. . .

Joshua Bolten and Ms. Miers shall produce all non-privileged documents requested by the applicable subpoenas and shall provide to plaintiff a specific description of any documents withheld from production on the basis of executive privilege consistent with the terms of the Memorandum Opinion issued on this date

The ruling is the latest in an ongoing battle between Congress and the White House, to have senior aides testify about the U.S. attorney firings.

After looking over the Opinion, Federal Judge John Bates lays out protocol for Congressional subpoenas, stating that while there may be perfectly legitimate claims of executive privilege, a subpoena from Congress can't just be ignored-- and if it is, Congress has a right to sue for failure to respond.

But as far as those claims of executive privilege go, the questions of their validity is still on the table. The Opinion specifically states that the Court "expresses no view on such claims," but it does go so far as to demand that the White House produce specific descriptions of all documents that relate to the claim of executive privilege. This list of descriptions, often called a "privilege log," helps lift the veil on the swath of documents that are being considered under the Administration's privilege claim.

So in short, the White House can continue to claim executive privilege, and Congress can continue to sue them on the legitimacy of the claims. Unless the two parties can work something out, around and around we go.

For those in a quandary about what the House Judiciary Committee's contempt citation of Karl Rove means, we refer you to the currently pending House Judiciary Committee v. Harriet Miers, et al.

Following the path of Miers, we see that after the committee votes on contempt, the resolution is then passed to the entire House. If the House approves the contempt of Congress resolutions, it goes to the DOJ for action.

But since Rove is claiming executive privilege, it is unlikely the DOJ will take any action -- at least they certainly didn't for Miers.

After the predicted DOJ demurring occurs, the House has passed a resolution that allows the HJC to file suit against the parties held in contempt-- which brings us back around to where we started: HJC v. Miers.

In a motion hearing in federal court today, U.S. District Judge John Bates questioned why Congress didn't simply arrest former White House counsel Harriet Miers and Chief of Staff Josh Bolten after both refused to respond to subpoenas issued by the House Judiciary Committee:

Congress has the authority to hold someone in contempt, U.S. District Judge John Bates said. Did it really need to go to court? House counsel Irvin Nathan said it did.

The hearing is the latest in an ongoing battle between Congress and the White House, to have senior aides testify about the U.S. attorney firings.

Bates also queried whether he should make a decision at all:

"Both sides have the same argument," Bates said. "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance."

Bates promised a quick decision, but noted the likelihood of appeal.