Last month the same court ordered Miers to comply with the House Judiciary Committee's subpoena to testify and produce documents in the matter of dismissed federal prosecutors. The administration requested that the July 31 order be stayed — delayed — so it could continue to prepare its arguments on appeal.
The administration continues to claim "absolute immunity" from testimony before Congress as its grounds for resisting the subpoena, because Miers was a member of the executive branch.
While the president enjoys that immunity, Bush's lawyers have been working at extending it all the way down to White House servants and dog walkers, except when Vice President Dick "Dick" Cheney is acting as president of the Senate. Under those circumstances, Cheney just tells you to "go f*ck yourself."
Bush's challenge to the July 31 order concerned the likelihood that an appeals court will rule in favor of its claims of absolute immunity for executive branch advisers such as Miers.
To prevail yesterday, the Bushies needed to demonstrate that 1) they were likely to win that appeal; 2) they would suffer irreparable harm by being denied additional delay; 3) further delay would cause no harm to the now-seated House Judiciary Committee; and 4) another delay would be in the public interest (as opposed to another DeLay).
According to the district court, Bush failed on 1), and failed hard. In their motion to the court, the loyal Bushies asserted only that the July 31 order was "susceptible to serious debate." But even if that were true, the court said, that isn't the point: the question is whether Bush can win the contemplated appeal, not whether he can continue to argue the July 31 order, which has nothing to do with the executive privilege issues the administration wishes to keep litigating.
Simply calling an issue important ... does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue.An odd bit of procedural confusion on the Bushies' part, for sure.
Next, Bush failed on 2) because the only truly irreparable harm would be Harriet Miers's mere appearance in Congress, which isn't any harm at all, notwithstanding the disturbingly raccoon-like eyeliner.
Miers may continue to assert executive privilege before Congress, and she may announce that her appearance is made only under protest from the administration (and perhaps Maybelline), both devices which would allow Bush to preserve his concerns for appeal.
As for the documents, the court had not ordered the administration to produce any privileged information in the first place.
Neither could Bush prove that the House Judiciary Committee would suffer no harm, because the Bushies' contemplated schedule for their protracted litigation would have pushed beyond not only the dissolution of the current 110th Congress, but likely clear into the next presidential administration, and the district court rightly declined to speculate as to how a subsequent presidency — or the 111th Congress — would choose to handle the matter.
Finally, on the fourth element, the district court found at least some merit to the administration's claims, in that executive privilege and the separation of powers are important constitutional questions and therefore in the public interest, but that the public's interest in a speedier resolution to the irregular activities on the part of the Alberto Gonzales/Karl Rove Department of Justice outweighed the former concerns, particularly in view of the administration's failure to make its case on the first three elements of its burden.
Committee on the Judiciary v. Miers (.pdf, 15 pgs.)*
* Featuring an incorrect usage of the word "presently."