That Didn’t Take Long

Even before the Speaker had certified the contempt, this letter arrived from Deputy Attorney General James Cole informing him that “the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

It should be noted that the statute, 2 U.S.C. § 194, assigns a duty to the United States Attorney, not to the “Department.” It is interesting that the letter comes from the Deputy Attorney General, not from the United States Attorney for District of Columbia, who is the official charged with the responsibility for presenting the congressional contempt case to the grand jury.

Presumably the Department would point to the fact that Attorney General Mukasey sent a similar letter in the case of the congressional contempt certifications for Josh Bolten and Harriet Miers. But the fact that something was done before doesn’t make it right, and I cannot understand why the Attorney General (or the Deputy Attorney General), rather than the U.S. Attorney, would be responsible for making the decision that the statute clearly assigns to the latter.

Presumably, in this case the letter did not come from Attorney General Holder because it would look like a conflict of interest for Holder to declare that he would not prosecute himself. But this doesn’t look much better.


Update: here is Senator Grassley’s letter to U.S. Attorney Machen questioning whether he has made an independent determination regarding the scope of the executive privilege claim and whether the case should be submitted to the grand jury.

The Holder Contempt- Civil Enforcement Edition

The House is scheduled to vote today on holding the Attorney General in contempt for his failure to comply with congressional subpoenas seeking documents in the Fast and Furious investigation. Since my last post on this subject, the House leadership has decided in addition to voting on the resolution to certify the contempt to the U.S. Attorney, the House will vote on H. Res. 706, which would authorize the Chairman of the Committee on Oversight and Governmental Reform to initiate judicial proceedings “to seek declaratory judgments affirming the duty of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to comply with any subpoena [covered by the contempt resolution].”

H.Res. 706 provides COGR an alternative mechanism to attempt to enforce the subpoena. Assuming that the U.S Attorney refuses to present the contempt certification to the grand jury, COGR can file suit in federal court seeking a declaratory judgment that Holder is required to produce some or all of the documents covered by the subpoenas.

Indeed, the U.S. Attorney may look on the availability of the civil enforcement mechanism as a ground for refusing to present the matter to a grand jury, at least until there is a resolution of the civil enforcement case. He may contend that a civil suit is the most appropriate means for resolving disputes between the executive and legislative branches regarding the applicability of executive privilege. This would be consistent with the position taken by the Department of Justice during the Reagan Administration.

However, during the Bush 43 Administration, the Department took a different position. It not only flatly refused to present a congressional contempt case against White House officials to the grand jury, but it also raised numerous jurisdictional objections to the House’s attempt to have the privilege issues resolved in a civil declaratory judgment action. Instead, the Department suggested that the only way the House could enforce a subpoena against an executive branch official would be to send the Sergeant-at-Arms to arrest him or her. Fortunately, Judge Bates did not find this to be a compelling argument.

So the question is- which Department of Justice will show up this time? Will it acknowledge the jurisdiction of the federal courts to resolve a declaratory judgment action regarding executive privilege? If so, a civil enforcement suit may be a relatively attractive and expeditious way of settling the dispute here. But if the Department intends to raise standing, subject-matter jurisdiction and political question issues (and the like), the House may be better off demanding that the U.S. Attorney comply with his statutory duty to present the matter to the grand jury.

Of course, if all else fails, there is always the nuclear option of sending the Sergeant-at-Arms to arrest the Attorney General. Professor Chafetz notwithstanding, however, I think this should be a really last resort.

David Laufman has more here.

The Holder Contempt- A Procedural Primer

As you may have heard, President Obama has asserted executive privilege with regard to Department of Justice documents sought by the House Committee on Oversight and Government Reform as part of its investigation of the “Fast and Furious” program, and COGR has voted to hold Attorney General Holder in contempt for failing to produce them. Rather than delving into the merits (on that subject see commentary by Todd Gaziano at Heritage’s The Foundry, John Hinderaker at PowerLine and Andrew Rudalevige at the Monkey Cage), I will lay out the procedural posture of the case in this post.

The Statutory Contempt Process

There are several ways that Congress can attempt to compel the production of information, but it appears that the House will follow the ordinary procedure, which may be referred to as criminal or statutory contempt, Understanding this process begins with a federal statute, 2 U.S.C. § 192, that states “[e]very person who having been summoned . . .  to produce papers upon any matter under inquiry before . . . any committee of either House of Congress, willfully makes default . . . shall be deemed guilty of a misdemeanor . . . .”

This provision in turn must be read in conjunction with another section, 2 U.S.C. § 194, which provides:

Whenever a witness summoned as mentioned in section 192 of this title fails . . . to produce any books, papers, records, or documents, as required . . . and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

A person relying on a literal reading of these provisions could be led seriously astray. In the first place, although nothing in the language of these sections indicates that certification by the presiding officer is a necessary prerequisite to prosecution under section 192, legislative, judicial and executive precedent clearly establishes that this is the case.

In the second place, although section 194 literally seems to require certification whenever “the fact of such failure or failures” is reported to the House or Senate, this is not the case. Before certification takes place, the House or Senate, as the case may be, must vote to hold the witness in contempt. Only then does it become the “duty” of the presiding officer to certify the contempt.

Even more perplexingly, if the House (for example) is not in session, and the “statement of fact” is presented to the Speaker, it is not the automatic duty of the Speaker to certify the contempt, although this is what section 194 seems to say. Instead, the D.C. Circuit held in Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966), that the Speaker cannot automatically certify the contempt, but must exercise some sort of discretionary review akin to that which the House would exercise if it were in session.

Finally, although the statute seems clear that the United States attorney to whom a certification is made must bring it before the grand jury for its action, this is also controversial. The executive branch has maintained that the statute cannot be interpreted to interfere with its prosecutorial discretion or with its authority to assert executive privilege. Specifically, in the one case in history where the House voted, and the Speaker certified, contempt against an executive branch official who withheld documents from a congressional committee on grounds of executive privilege, the Office of Legal Counsel opined that the United States Attorney for the District of Columbia was not required to refer the matter to the grand jury (or to initiate a prosecution). See 8 O.L.C. 101 (May 30, 1984). Although OLC’s reasoning would seem to apply to any case where an executive official asserted executive privilege at the President’s direction, it declined to announce a general rule, limiting its opinion to the specific facts of that case.

Continue reading “The Holder Contempt- A Procedural Primer”

More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”

The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get the irony.

Anyway, by and by this attracted the attention of congressional investigators, who requested a transcribed interview with Bloch. During the interview, they asked Bloch about an incident where he had used an outside service, Geeks on Call, to perform something called a “seven level wipe” on certain computers at the Office of Special Counsel, including his own. The suspicion was that he wanted to remove evidence that would substantiate some of the allegations against him.

According to a later information filed against him, Bloch, “having been requested by the House Oversight Committee to provide information upon a matter of pertinent inquiry before the Committee, unlawfully and willfully did make default by refusing and failing to state fully and completely the nature and extent of his instructions that Geeks on Call perform ‘seven level wipes’ on [the computers in question].”

Bloch entered into a plea agreement, in which he agreed to plead guilty to a single misdemeanor count of contempt of Congress, 2 U.S.C. § 192. Under the plea agreement, the prosecution would not oppose “a sentence at the low end of the applicable Guidelines range,” which the agreement calculates as “0 to 6 months.” In other words, the prosecutors promised that they would not object to Bloch’s position that he should serve no jail time (although the actual sentence would be up to the court).

After Bloch pled guilty, however, the U.S. Probation Office prepared a presentence report that noted the minimum sentence for contempt of Congress is one month in jail. This did not require any lengthy legal research; the statute provides on its face that the offense is punishable by “imprisonment in a common jail for not less than one month nor more than twelve months.”

Nevertheless, both Bloch’s lawyers and the prosecution objected. They pointed out that the last two prosecutions for contempt of Congress had resulted in sentences of probation. In the most recent case, United States v. Miguel Tejada, 09-mj-077, the defendant, who pled guilty just a year before Bloch, was given probation and the Probation Office did not raise any objection.

The magistrate judge did not buy it. Not only did she conclude that the statute was clear on its face in requiring a one month minimum sentence, but she refused to allow Bloch to withdraw his guilty plea. She was clearly irked by the joint position of the prosecution and defense that Bloch should be allowed to negotiate a new plea deal in which he would plead guilty to a different offense (presumably one that would permit no jail time). Responding to this suggestion, she stated “[c]onfidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.”

Maybe so, but it seems to have escaped notice that Bloch could not have committed the offense to which he pled guilty. The contempt of Congress statute provides that “[e]very person who having been summoned as a witness . . . to give testimony . . .  upon any matter under inquiry before . . .  any committee of either House of Congress, willfully makes default, or who having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor. . . .”

Bloch was not “summoned as a witness.” He was asked to provide a voluntary interview. He did not appear before a committee. He met with congressional staff. He did not “willfully make default” (ie, fail to appear). If he had refused to answer one or more questions posed by the staff, it does not seem that he would have violated the statute (and it is not apparent from the information whether he actually did refuse to answer questions). What Bloch apparently did was to fail to provide accurate or complete answers to questions regarding the computer incident. This may have violated the False Statements Act, but it is hard to see how it constituted contempt of Congress.

This is not the first time that the contempt of Congress statute has been used to convert the felony of lying to or obstructing Congress into a misdemeanor charge. Nor has it been a secret. In 1988, when Robert McFarlane pled guilty to contempt of Congress, the New York Times pointed out that what McFarlane did was not actually contempt of Congress, but lying to Congress. Nevertheless, it noted that prosecutors used the “euphemism” of equating lying to Congress with a refusal to answer questions as a means of reducing the charge from felony to misdemeanor. This technique was also used in the plea bargains of Richard Kleindienst and Richard Helms.

Furthermore, even if Bloch had committed the offense to which he pled guilty, the court would not have had jurisdiction to convict him. The D.C. Circuit has held that a conviction for contempt of Congress is invalid unless the contempt has first been properly certified by the House or Senate (or, during adjournment, by the Speaker or President of the Senate) to the U.S. Attorney under 2 U.S.C. § 194.  Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). (Indeed, the reason that there is a minimum sentence for contempt is undoubtedly to ensure that the U.S. Attorney is sufficiently vigorous in acting on such a congressional certification). No such certification was made here.

In short, it appears that Bloch pled guilty to a crime that he didn’t commit in order to get a sentence to which he was not entitled from a court that was not empowered to pronounce one. Chief Judge Lamberth has now reversed the magistrate judge, finding that Bloch should have been allowed to withdraw his guilty plea. Judge Lamberth seems to have accepted the view that contempt requires a minimum one month sentence, however. Thus, it will be harder for this provision to be used as the basis for plea bargains in the future.

Rove Seeks Legal Advice of Noted Constitutional Scholar

             The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2.  Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.  Obama Press Secretary Robert Gibbs says that the matter has been turned over to the White House Counsel for consideration. 

            Some have asked why Rove should be entitled to an advisory opinion from the Obama Administration on whether he must comply with a congressional subpoena.  After all, the ordinary witness does not have that option, but must choose between complying with a congressional subpoena or facing a possible criminal prosecution for contempt. 

            Rove, however, is not in the position of an ordinary witness.  The former president has directed him not to appear before Congress based on an asserted absolute immunity.  This immunity has been claimed by the Office of Legal Counsel not only in the Bush 43 Administration, but in the Clinton and previous administrations.  Moreover, there is a case currently pending before the D.C. Circuit (Miers v. House Judiciary Committee)  in which the court may rule on the existence of the immunity.  Up to this point, the Justice Department has argued in favor of the immunity in Miers, and the Obama Administration will have to decide whether to change this position.  

            Given this state of affairs, the Obama Administration has several possible responses.  First, it could tell Rove that it does not recognize the existence of the immunity.  In that case, Rove could choose to ignore this advice and refuse to testify anyway, taking the risk that he might ultimately be prosecuted for contempt of Congress.  More likely, Rove will tell former President Bush that he intends to appear unless Bush brings a legal action to vindicate the claimed immunity.  Otherwise, Rove would appear on Monday and invoke executive privilege on a question-by-question basis.  

            Second, the Obama Administration could tell Rove that it has not yet decided on what position it intends to take in the Miers case and that the matter is under review by the Department of Justice.  In addition, or in the alternative, it might tell Rove that to the extent the immunity is controlled by the current president, Obama declines to assert it.  Such a response would give Rove somewhat more cover to refuse to appear before the House Judiciary Committee.  Rove could argue to the committee that the question of whether the immunity exists is an unresolved legal question and that the committee should either bring a declaratory judgment action against him (as it did for Miers and Bolten) or should await the outcome of the case pending in the D.C. Circuit. 

            Third, the Obama Administration could tell Rove that the immunity belongs to the current president, not the former president, and inform him that Obama waives it.  I think this response is less likely than the first two.  If one accepts for sake of argument that the immunity exists in the first place (IMHO, a very dubious proposition), it would not make much sense to allow the current president to waive the immunity for aides of former presidents.  The whole idea of the immunity is that a presidential aide acts as the “alter ego” of the president for whom he or she works.  Allowing a different president to control the assertion of the immunity would be like allowing the assertion of Speech or Debate privilege for a congressional aide to be controlled by the successor to the congressman whom the aide served. 

            Finally, the Obama Administration could tell Rove that he should abide by the instructions of the former president, at least for the time being.  In that case Rove is off the hook for the moment. 

            Of course, the Obama Administration might not respond at all.  In that case, Rove and his attorney will probably construe the non-response as meaning that the current administration adheres to the previously expressed views of the Justice Department, and decline to appear on that basis.     

             My bet would be on some variant of the second response.  But we shall see.

DC Circuit Grants Stay in Miers Case


            The D.C. Circuit has at last ruled on the stay motion in the Miers case.  In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule. 

The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers must testify is the “functional equivalent” of an injunction, and thus appealable, because the court presumes that executive officials (or, in Miers’s case, former executive officials) will act in accordance with the court’s declaration.   

            The rest of the opinion is very peculiar because it makes no reference to the four factors that the court is required to consider in ruling on a stay.  There is in fact no explicit discussion of any kind regarding the merits of the stay application.  Instead the court first notes that this is a “case of potentially great significance for the balance of power between the Legislative and Executive Branches.”  It then explains that “the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.”  Accordingly, it concludes that there is no reason to expedite the case. 

            Somewhere, though, the court seems to have missed the step of explaining why the stay should be granted.  The question of expediting the case only becomes relevant if one assumes that the case is stayed.  One gets the impression that there may have been some additional discussion that was deleted at the last moment. 

Judge Tatel’s concurring opinion does discuss the stay issue. He suggests that an appellant who will suffer irreparable injury need only make a “modest” showing of probable success on the merits. He then indicates that issues before the court satisfy this standard, “[e]xcept for the executive’s assertion of absolute immunity from congressional process.”

Of course, that is a very big exception, seeing as how absolute immunity is the main issue in the case. (Presumably, the other issues Judge Tatel refers to are the threshold jurisdictional issues raised by the Executive). Moreover, while Judge Tatel apparently accepts that the Executive would suffer “irreparable injury” if a stay were not granted, he does not explain why that would be the case. The Executive’s argument with regard to irreparable injury was simply that Judge Bates’s order “negates” Miers’s asserted absolute immunity by requiring Miers to appear and testify before the Committee. But how could Judge Tatel find that to be irreparable injury if the absolute immunity is meritless?

The real point of Judge Tatel’s concurrence, though, was to state that he was “perplexed” by the majority’s willingness to grant a stay without definitively rejecting the possibility that “the expiration of the 110th Congress would moot the case before it is heard on the merits.” “Never before have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court.” Nonetheless, because Judge Tatel believes that the case would not be moot (and therefore that a stay will not greatly harm the Committee), he concurred in the court’s judgment.

The one thing that seems clear from both the majority and concurring opinions is that the panel hopes that a new President and new Congress will find a way to resolve this dispute without the need for further judicial intervention. I think that the court would have been better served if it had simply expressed this view directly, rather than reaching the result through dubious (or entirely absent) legal reasoning.

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.

DC Circuit to hear argument in Miers Case

The U.S. Court of Appeals for the D.C. Circuit today set oral argument in the White House subpoena case for September 16th at 2:30 p.m. before Circuit Judges Douglas Ginsburg, David Tatel, and Raymond Randolph. The sides each have 15 minutes.

Miers Case on Hold Until Wednesday

          A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an “administrative stay” of Judge Bates’s order in the Miers contempt case.  This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether to grant a stay pending appeal.  The stay issued on September 4, the date on which the White House was supposed to turn over non-privileged documents to the Judiciary Committee.  Presumably, it did not do so. 

            The appellate panel ordered the parties to address three questions by next week: (1) whether there is appellate jurisdiction over the appeal; (2) whether the case will become moot on expiration of the 110th Congress; and (3) if the court has jurisdiction and issues a stay pending appeal, what briefing schedule would the parties propose on the merits.  The final brief on this is due the afternoon of September 10; Harriet Miers is scheduled to testify on September 11. 

            I am not sure what to make of this.  You have a panel of two Republican appointees (Ginsburg and Randolph) and one Democratic appointee (Tatel).  Obviously they recognize the importance of this matter and want to think about it carefully.  I also suspect that they would like (a) to dispose of the case on the narrowest possible grounds and (b) reach a unanimous decision if possible. 

            Finding no appellate jurisdiction may be the simplest way to achieve these objectives (I am assuming that the exercise of jurisdiction here is either discretionary or a very close call legally).  OTOH, they may want to try to put pressure on the parties to resolve the issue through negotiation, which would require exercising appellate jurisdiction.  But it is hard to figure out how they can put pressure on both parties at the same time.  Perhaps they could give the parties a short period to work out a settlement with the proviso that the good faith of each party’s effort would be considered in ruling on a stay pending appeal.