In a motion filed today, Miers and Bolten have asked the District Judge John Bates to stay his ruling until the U.S. Court of Appeals for the District of Columbia Circuit hears the case.
Lawyers for Miers and Bolten have argued that the two, as senior aides to President Bush, have "absolute immunity" from congressional subpoenas under a claim of executive privilege. In a July 31 ruling, Bates rejected the absolute immunity claim, although he did not rule on the specific merits of their executive privilege claims. Bates' ruling came in response to a civil lawsuit filed by the House Judiciary Committee, which wants testimony and documents from the two as part of its ongoing probe into the firing of nine U.S. attorneys.
Miers and Bolten note that Rep. John Conyers (D-Mich.), chairman of the Judiciary Committee, and other congressional panels have used the ruling to try to enforce the subpoena, and their asking Bates for a stay in order to proceed with their appeal of his decision.
"Absent a stay, the Court's Order will not only negate the absolute immunity that has been asserted, but have immediate and significant collateral impacts as well," Justice Dept. lawyers said in today's motion. "Shortly after this Court issued its decision, the [Judiciary] Committee demanded from defendants immediate compliance with the Committee's subpoenas, including the compelled testimony of Ms. Miers, and the disclosure within one week of a more detailed description of documents withheld. In addition, following the decision, other members of the Legislative Branch are seeking to have other close presidential advisers comply with subpoenas for documents or testimony, or to provide specific descriptions of withheld documents. In order to preserve an opportunity for meaningful appellate specificially requesting the Court stay its Order pending appeal."
The Justice Dept. said it will seek an expedited appeal schedule in the case.
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