Obama likely to win Executive Privilege waiting game

Although negotiations between the Committee and the White House continued in an attempt to reach a compromise over the disclosure of documents and the requested testimony, by July 25, 2007, the sides had apparently reached an impasse, and the Committee voted to recommend that Ms. Miers and Mr. Bolten be cited for contempt of Congress for failure to comply with the duly issued subpoenas. The resolutions were forwarded to the House of Representatives, which voted to cite Ms. Miers and Mr. Bolten for contempt of Congress on February 14, 2008. The House approved Resolution 979, which directed the Speaker to forward the contempt citation to the U.S. Attorney for the District of Columbia for action against Ms. Miers and Mr. Bolten; and Resolution 980, which expressly authorized Chairman Conyers to initiate a civil lawsuit in federal court to enforce the subpoenas in the event that the Department of Justice did not pursue the criminal contempt actions.
On February 28, 2008, pursuant to 2 U.S.C. §194, the Speaker of the House certified the report to the U.S. Attorney for the District of Columbia for presentation to the grand jury. The next day, however, the Attorney General sent a letter to the Speaker, stating that the Department of Justice would “not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.” Consistent with the positions asserted in the previously discussed OLC opinions, it appeared that the DOJ would not proceed with the prosecution of a White House official for criminal contempt of Congress where that official had invoked executive privilege at the behest of the President. With any criminal contempt prosecution under 2 U.S.C. §§192 and194 unavailable, on March 10, 2008, pursuant to the resolution adopted by the House of Representatives, the Committee filed a civil suit in the U.S. District Court for the District of Columbia “seek[ing] [a] declaratory judgment[]” and other “appropriate relief, including injunctive relief” to enforce the Committee’s subpoenas.
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The opinion issued by the U.S. District Court for the District of Columbia on July 31, 2008, rejected the Administration’s position, noting that “the asserted absolute immunity claim here is entirely unsupported by existing case law.” 314 In addition, the court reaffirmed Congress’s “essential,” constitutionally based power to issue and enforce subpoenas.
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The Administration appealed the district court decision and asked the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to stay the district court order pending an expedited final decision by that court. On September 16, 2008 the D.C. Circuit granted the stay, but denied the Administration’s request for an expedited schedule. The appeals court had concluded that “even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch … before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire.” As noted previously, the authority underlying a House subpoena or contempt citation has traditionally been considered to expire at the termination of the Congress in which it was authorized. Accordingly, because the Committee’s subpoenas were likely to expire before the dispute could be resolved, the court saw no reason to expedite the case.