Justice Department lawyers have asked the D.C. Circuit for more time for defendants in a House Judiciary Committee lawsuit to file their opening brief in the appellate case.
The defendants' opening brief was due Feb. 18, but they've asked the D.C. Circuit for an extension to March 4 -- in part to give negotiations toward an out-of-court settlement a chance to bear fruit.
"Negotiations are now ongoing," Justice Department lawyers wrote in the motion, adding that "these tripartite discussions have been complicated and time-consuming," but that "the requested 14-day extension is appropriate to permit these negotiations an opportunity to succeed, potentially obviating the need for this Court to address the sensitive separation-of-powers questions presented in this appeal."
The House Judiciary Committee sued former Bush White House counsel Harriet Miers and Bush White House chief of staff Joshua Bolten last year, seeking enforcement of subpoenas for documents and, in Miers' case, testimony related to the firings of nine U.S. attorneys in 2006. A district court ruled for the committee, and the defendants appealed.
The D.C. Circuit is likely to grant the extension, for two reasons: House lawyers are okay with it; and when it comes to executive-legislative disputes, courts usually do everything they can to encourage the two sides to work things out on their own.
Bolten and Miers did not comply with the subpoenas, issued in 2007, after President Bush made a blanket claim of executive privilege. The case, a rare test of the legality of such a privilege claim, could establish a new judicial standard for the validity of a privilege claim asserted by a former president.
The Obama administration has not announced whether President Obama would assert the same privilege claim, in the interest of preserving presidential prerogative, or take a different view, and perhaps even provide the Judiciary committee with the relevant Bush White House records. But all of that is being hashed through now.
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