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.

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."

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.

Just hours after a federal judge shot down the White House's claim to sweeping immunity from Congressional oversight, Sen. Patrick Leahy (D-Vt.) fired off a round of letters renewing his demand for testimony from Karl Rove and White House Chief of Staff Joshua Bolten.

The Senate Judiciary Committee chairman sent a letter to White House Counsel Fred Fielding asking whether the two officials will agree to testify in light of today's ruling against the Bush administration's blanket claim of executive privilege.

The investigation at issue is the allegedly political firings of eight U.S. attorneys. The Senate committee issued subpoenas in June and July 2007 for Bolton and Rove to testify on Capitol Hill.

"Today's decision renders the grounds for Mr. Bolten and Mr. Rove's refusal to comply with the Committee's subpoenas moot," Leahy wrote in the letter to Fielding.

Leahy also sent a terse letter to Attorney General Michael Mukasey asking whether he planned to rescind the legal memos based on the theory of blanket executive privileged that the judge dismissed today.

Please advise me by no later than next Thursday, August 7, when you will withdraw the erroneous [Office of Legal Counsel] opinion from Stephen Bradbury relied upon by the White House to justify its non-compliance with congressional subpoenas since that opinion has been repudiated by the court.

In addition, please inform me whether the court's decision will cause you to re-evaluate your memos and those from [Office of Legal Counsel] in support of overbroad and unsubstantiated executive privilege claims not only in the U.S. Attorneys investigation, but also in other matters, like the claims used to block Congress from investigating warrantless wiretapping, the leak of the name of undercover CIA agent Valerie Plame for political retribution, and White House interference in the Environmental Protection Agency's decision-making. Which of these do you now intend to withdraw?

Leahy sounds like he's asking for a complete surrender in this ongoing battle over White House officials' testimony. But there's a lot of litigation still to go in this case.

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.

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.