Associated Press
Wednesday, September 17, 2008

Federal judges pondered yesterday whether preventing former White House counsel Harriet E. Miers from testifying before Congress would enable the Bush administration to leave office without having to defend its assertion that presidential aides need not appear before congressional panels.

A federal judge has ordered Miers to testify before the House Judiciary Committee about the firing of U.S. attorneys, which Democrats contend was politically motivated. The U.S. Court of Appeals for the District of Columbia temporarily blocked the testimony.

But a three-judge appeals panel questioned yesterday whether to continue the stay.

Doing so, Judge David S. Tatel said, would be "mooting the victory the House committee won."

"Even if we render a decision today, you could run the clock out" with appeals to the full court or the Supreme Court, Judge A. Raymond Randolph said.

The Justice Department says Congress cannot force top White House aides to testify because it infringes on the executive branch's independence.

In July, U.S. District Judge John D. Bates rejected the government's argument. The judge ordered Miers to testify and White House Chief of Staff Joshua B. Bolten to turn over documents related to the 2006 prosecutor firings.

The Judiciary Committee ordered Miers to testify days after Bates's decision. If the appeals court doesn't continue the stay, the committee will call her again and "Miers would be deprived of the very immunity we think she's entitled to," said Justice Department attorney Carl Nichols.

The judges noted that members of Congress and their aides cannot be forced to testify about legislative activity. The Constitution prohibits the executive branch from using its law enforcement authority in a way that interferes with legislative business.

The judges did not indicate when they would rule.