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Court Won't Force Testimony On Firings of U.S. Attorneys
Issue Left to Next Congress In Victory for White House

By Carrie Johnson
Washington Post Staff Writer
Tuesday, October 7, 2008

A federal appeals court declined yesterday to order current and former White House aides to testify before a House committee about the firings of nine U.S. attorneys, leaving the next Congress to decide how aggressively to pursue the constitutional showdown.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the dispute over the role of politics in the 2006 dismissals would not be "fully and finally resolved" by the time the 110th Congress gives way.

So the court granted a delay in the case, pending the results of an appeal by former White House counsel Harriet E. Miers and presidential chief of staff Joshua B. Bolten. The aides are contesting a July ruling by a lower court that ordered them to produce documents and testimony. They had asserted that lawmakers are intruding on President Bush's executive privilege.

"The present dispute is of potentially great significance for the balance of power between the legislative and executive branches," the appellate judges wrote in their unsigned opinion.

The decision is a victory for the Bush administration, which for more than a year has fended off attempts by Democrats and the Justice Department's inspector general to trace the basis for the federal prosecutors' firings to the White House.

Last week, Attorney General Michael B. Mukasey appointed a veteran public corruption prosecutor, Nora R. Dannehy, to investigate White House involvement in the dismissals and any false statements made by witnesses who discussed their roles. Investigators concluded that improper political motives contributed to at least three of the firings.

But it remains unclear whether a new Congress will have the political will to chase the issue.

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said yesterday that he thinks lawmakers ultimately will "get to the bottom of the Bush administration's disgraceful politicization of the Justice Department."

White House spokesman Tony Fratto said the administration was pleased that the court had recognized that "there are serious questions regarding the separation of powers between the branches."

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