In his July 31 decision on the congressional subpoenas to Harriet Miers and Josh Bolten, Judge Bates noted “the likelihood of appeal of this decision,” and he observed that “given the significance of the issues involved, a stay pending appeal is at least possible.” The court will now have to resolve this issue because the Justice Department has filed a notice of appeal and moved for a stay.
Notwithstanding the court’s evident willingness to consider a stay, I think the Justice Department has an uphill battle here. In evaluating a stay, the court is required to weigh four factors: (1) the likelihood that the Executive will prevail on the merits of its appeal; (2) the likelihood that the Executive (or Miers/Bolten) will suffer irreparable harm without a stay; (3) the harm that will be caused to the House or others by granting a stay; and (4) the public interest.
(1). The chances of the Executive prevailing on appeal seem low. Judge Bates firmly rejected the Justice Department’s main argument, which was that the House lacked standing to bring the lawsuit. His opinion concludes that “[c]lear judicial precedent, along with persuasive reasoning in OLC opinions, establishes that the Committee has standing to pursue this action and, moreover, that this type of dispute is justiciable in federal court.” Nothing in his opinion suggests that he viewed this as a close question.
The court was even more emphatic in rejecting the absolute immunity argument advanced by the Justice Department, describing it as “unprecedented” and “without any support in the case law.” After dismissing the Reno and Bradbury opinions which attempted to support this argument as “for the most part conclusory and recursive,” the court concluded that “[c]lear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process.”
The court also rejected the Justice Department’s contention that the complaint be dismissed because there was no cause of action authorizing the lawsuit. It did so on two alternative grounds, finding first that the case could be brought under the Declaratory Judgment Act without a free-standing cause of action and that in any event the Committee had an implied cause of action derived from Article I to seek a judicial declaration concerning the exercise of its subpoena power. The court acknowledged, however, that these were fairly novel questions and that there was little case law on point.
Given that direct litigation between the political branches is rare, and the lack of directly applicable precedent on the cause of action issue, the court will probably acknowledge that there is some possibility that the Executive will prevail on the merits of its appeal. Of course, this assumes that the court’s order is in fact appealable, which is also uncertain. All in all, it seems likely that the court will find that the first factor at most mildly favors the granting of a stay.
(2). The biggest obstacle faced by the Executive is substantiating the claim that it will suffer irreparable injury if a stay is not granted. The thrust of the argument is that Judge Bates’s order “negates” Miers’s asserted absolute immunity by ordering Miers to appear and testify before the Committee.
There are several problems with this argument. First, even if Miers were to appear before the Committee, it is difficult to see how this would cause the Executive irreparable injury. The only injury that the Justice Department has identified that might conceivably be caused by such an appearance would be a rather intangible injury to presidential “autonomy.” But the court has already dismissed this notion, noting that “the Executive’s interest in ‘autonomy’ rests upon a discredited notion of executive power and privilege.”
Second, it is difficult to see how a single appearance by Miers could cause serious, much less irreparable, harm of any kind. The Justice Department has suggested that permitting Congress to subpoena senior White House officials would give Congress the ability to undermine the President’s independence and autonomy by allowing it to summon his advisers at will, thus leaving him exposed to harassment and his advisers subject to potentially vexatious or oppressive questioning. But whatever one thinks of this specter, it is one that would emerge over time, not as the result of a single appearance by a former WH counsel regarding a subject the court has already found to be a proper matter for congressional inquiry.
The mere fact that Miers should appear before the Committee does not, of course, prevent the Executive from asserting its absolute immunity theory with respect to other congressional subpoenas, including subpoenas that are currently outstanding to other senior officials, such as Karl Rove. It is possible that Miers’s appearance would moot the absolute immunity issue here, thus depriving the Executive of the ability to preserve the issue for appellate review with respect to this particular case. Even that is not certain, however, as the court of appeals might consider the issue in the context of a subsequent refusal by Miers to answer particular questions posed by the Committee. In any event, it seems highly doubtful that the possibility of mooting the absolute immunity issue would be considered an irreparable injury.
The idea that Miers’s appearance would cause irreparable injury is further undermined by the fact that the Executive has already offered to have Miers appear, in private, and answer questions posed by the Committee. It is difficult to see how there could be irreparable injury from Miers’s mere appearance if the Executive has already offered such an appearance. (As far as I know, the Executive has not claimed that her appearance in a public setting would cause a discrete injury and any such injury could be remedied by having her appear in closed session). Moreover, as the court pointed out in its opinion, “the historical record produced by the Committee reveals that senior advisors to the President have often testified before Congress subject to various subpoenas dating back to 1973.”
Finally, it is critical to note, as the court repeatedly emphasized in its opinion, that Miers has not been ordered to answer any questions, and that the court has not addressed the merits of any particular assertion of executive privilege. There is nothing in the court’s opinion that prevents Miers from appearing and refusing to answer every question that calls for non-public information. Thus, the Executive can hardly claim that a stay is needed to protect its confidentiality interests.
Indeed, the court did not even order Miers to appear before the Committee. The court’s order declares that Miers “is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff,” but it does not order her to appear at any particular date and time. Judge Bates, in fact, implies at times that the court’s power may be limited to issuing declaratory, as opposed to injunctive, relief. At any rate, at this juncture the court has done no more than declare Miers’s duty to appear. As the judge repeatedly emphasized, it is his strong desire that the parties themselves work out the remainder of the dispute without the need for any further judicial intervention.
The only thing that the court actually ordered was the production of “non-privileged” documents and further description of documents withheld. Since it is up to the Executive in the first instance to decide which documents it believes are “non-privileged” and to decide how much of a description to give, this order hardly can be viewed as causing irreparable damage.
For these reasons this factor should cut heavily against the granting of a stay.
(3). The court must also consider the harm that granting a stay would cause to the House and to the Committee. Judge Bates has already found that the Committee is conducting an appropriate and legitimate investigation into the termination of U.S. Attorneys and that the refusal to respond to the subpoenas had caused an information injury to the Committee. Although the court did not attempt to quantify this injury, it seemed to acknowledge the importance of the information sought when it credited the Committee’s finding that “Ms. Miers had played a significant personal role in the termination decision-making.”
Furthermore, the court has already recognized that time is short, and that the end of the 110th Congress could moot the subpoenas. Granting a stay would likely make it impossible for the Committee to obtain the information it seeks before the Committee itself (technically) expires at the end of the Congress.
The harm to the Committee appears particularly acute when one considers the context of the negotiations between the parties. Judge Bates has noted that “the record reflects that it was the Executive and not the Committee that refused to budge from its initial bargaining position.” He also observed that “the prospect of ultimate judicial resolution will help to ensure that the parties continue to negotiate in good faith rather than rewarding intransigence.”
Given these statements by the court, it is somewhat surprising that the Executive has apparently not made any new offer to the Committee to attempt to meet the Committee’s need for information. One obvious possibility would be for the Executive to reiterate its offer of a private interview with Miers (limited to Miers’s communications with persons outside the WH), but without the “poison pill” condition that the Committee waive its right to seek additional information. Alternatively, the Executive could at least offer to allow Miers to appear before the Committee (or staff) in closed session so that Miers could invoke executive privilege on a question-by-question basis. By failing to make any such proposals, the Executive creates the impression that it is not interested in meeting the Committee’s need for information or even in moving the process forward, but is simply trying to run out the clock.
Perhaps recognizing this problem, WH Counsel Fred Fielding wrote to Chairman Conyers on August 8, stating “the fact that the Executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive way forward.” Fielding proposed further talks to reach an accommodation between the branches. At the moment, however, there is nothing on the table that would seem to mitigate the harm that the Committee and House will suffer by virtue of the granting of a stay. Indeed, one could say that the issuance of a stay at this point would reward the Executive’s intransigence.
This factor therefore weighs against the granting of a stay.
(4). The court has also recognized the case “raises issues of enormous ‘public importance.’” Whether this statement referred to the legal issues in the case and/or the factual and public policy issues in the underlying investigation is unclear, but the court made several statements which suggested it viewed the investigation itself as significant to the public interest.
Indeed, perhaps the most surprising aspect of Judge Bates’s opinion was the degree to which he seemed to accept the Committee’s characterization of the underlying investigation into the firing of the U.S. Attorneys. For example, he suggested that the congressional investigation in McGrain v. Daugherty, 273 U.S. 135 (1927), involved “nearly the identical subject matter that the Committee is investigating.” The Committee’s investigation, he explained, is not merely “into the Executive’s use of his removal power but rather a broader inquiry into whether improper partisan considerations have influenced prosecutorial discretion.” At another point, he stated that “Congress’s use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury’s in United States v. Nixon.” [note: Judge Bates appears to be under the impression that the Nixon case involved a grand jury subpoena, whereas in fact it was a criminal trial subpoena].
To the extent that Judge Bates is equating the firing of the U.S. Attorneys with Teapot Dome (McGrain) or Watergate (Nixon), I think he has gone a little over the top. Nevertheless, he clearly believes that this investigation serves an important public interest, and therefore he will likely find that this factor also cuts against the issuance of a stay.
The Justice Department will probably contend that there is an important public interest in having the court of appeals review the significant legal issues in this case. As already noted, however, it is by no means clear that a stay is needed to preserve the possibility of appellate review. Moreover, to this logic would suggest that the Executive is more interested in obtaining appellate review than in trying to work out a resolution that could satisfy the interests of both branches. It seems highly unlikely that Judge Bates, who emphasized the importance of attempting to resolve the parties’ differences through negotiation and accommodation, would accept this logic.
For all of these reasons I predict that Judge Bates will deny the request for a stay pending appeal.