D.C. Circuit Considers a Stay in the Miers Case

           I attended yesterday’s D.C. Circuit argument on the Justice Department’s stay application in the Miers case.  The panel consisted of Judges Randolph, Ginsburg and Tatel.  A few takeaways: 

            Despite having asked the parties to brief appellate jurisdiction, the court didn’t seem interested in that subject.  The sense I got was that the judges are satisfied that they have jurisdiction over at least some part of the case. 

            It seemed as if the judges were interested in granting a stay, but it was not clear why.  The judges did not give much indication of disagreement with the rulings of the court below.  Judge Randolph made a point of noting, in response to House Counsel’s assertion that the Justice Department’s position on absolute immunity was “bogus” and “frivolous,” that this was the position of every administration since the Nixon Administration.  However, while the panel may believe that absolute immunity is a question of first impression, I did not detect any indication that the judges disagreed with how Judge Bates resolved that question.  Toward the end of the argument, Judge Tatel asked DOJ attorney Carl Nichols what was his “best case” in support of the absolute immunity position.  Nichols cited Nixon v. Fitzgerald (holding that the President is immune from civil suits) but acknowledged that Harlow v. Fitzgerald (denying the same immunity to presidential aides) “would be difficult for us.”  I am probably biased here (as I don’t think much of the absolute immunity argument myself), but I don’t think the judges found that very convincing.

With regard to the Justice Department’s threshold arguments, standing and cause of action, there was no discussion of the latter and the former did not come up until the very end of the argument, when Judge Randolph pointed out that if the House were to exercise its “self-help” remedy by arresting an executive official for contempt, the court would have to hear the same issues in the form of a habeas petition brought by the detained official. None of the panel seemed to understand why this would be a more appropriate way to resolve the dispute than the declaratory judgment action brought by the House.

(Judge Randolph asked Nichols whether the House had ever arrested an executive official for contempt. Nichols stated that he was not aware of any such case. In fact, at least two executive officials have been arrested for contempt, but in neither case were they asserting executive branch privileges or refusing to testify on the direction of the President.)

Most of the argument focused on the how much harm the House would suffer if a stay were granted. This is a tricky question because, although both parties agreed that the subpoenas here would “expire” at the conclusion of the Congress (i.e., in the first week of January 2009), the parties themselves seemed unsure as to what that would mean for the case. Nichols argued that the case would “likely” be moot at the expiration of the Congress, but suggested that this might depend on several factors that he did not identify. He also argued that the only legitimate purpose for the subpoena was to obtain information in aid of legislation, and that there was no possibility, even if the case were not stayed, that the House would be able to get any useful information and use it for legislative purposes in this Congress. In other words, a stay would not really matter because the clock will run out either way. (For that very reason the Justice Department has previously taken the position that congressional subpoenas expire upon adjournment sine die, another position that it has apparently altered for the purposes of this case.)

House Counsel Irv Nathan acknowledged that the subpoena would expire at the end of the Congress, but suggested that this might not moot the case because it would fall within the mootness exception for cases capable of repetition but evading review. Judge Tatel pointed out, however, that this exception only applies if the case is capable of repetition for the same plaintiff, and is therefore arguably inapplicable because the House Judiciary Committee itself (along with the House as a whole) expires at the end of the Congress.

It is not clear to me that the case should be mooted by the expiration of the Congress. As both parties acknowledged at the argument, the court of appeals in the AT&T case apparently did not view the expiration of the Congress as mooting the controversy before it. Moreover, in the census litigation, the three-judge district court (which included Judge Ginsberg) rejected the Justice Department’s argument that the House lacked standing to assert the injuries of a future Congress. The court gave two reasons for its conclusion (1) it noted that the House is in some respects a continuing institution (such as for owning property) and (2) it found that in any event the House had a “special relationship” with its successors so as to allow it to vindicate the rights of the latter. It seems to me that similar reasoning would allow the 111th Congress to continue to litigate the rights of the 110th.

In the final analysis, I suspect that the D.C. Circuit’s decision here will turn on some fairly practical considerations. I think that the court may be nervous about letting the case go forward in the district court because of the possibility that the court will get further embroiled in this political dispute. On the other hand, the judges (particularly, but not solely, Judge Tatel) were clearly concerned about depriving the House of the opportunity (to which Judge Bates found it was entitled) to get the evidence needed for its investigation.

This suggests the possibility that the court will issue some sort of creative order (not unlike what happened in the AT&T case) designed to resolve the matter without the need for further judicial proceedings. For example, the court might give the parties a limited period of time, say a week, to reach a settlement of the matter. If the White House/Justice Department failed to make a reasonable offer to resolve the dispute, the stay would be lifted. As I have indicated before, I think that the offer of a private (preferably transcribed) interview with Miers would be a reasonable offer, if the White House dropped the condition that the House waive its right to seek additional information from Miers.

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