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Appeals court seeks to weigh in on battle over Miers subpoena

WASHINGTON — A federal appeals court has temporarily delayed a lower court's order that would require former White House Counsel Harriet Miers to appear before a congressional committee that's investigating the firings of nine U.S. attorneys.

The U.S. Court of Appeals for the District of Columbia Circuit issued the stay late Thursday to determine whether it has the authority to hear the Justice Department's appeal of a ruling requiring Miers to appear before the House Judiciary Committee.

In late July, U.S. District Judge John Bates ruled that Miers didn't have the right to ignore the subpoena but that she could cite executive privilege and refuse to answer specific questions once she was before the committee.

Bates' 93-page ruling was seen as a significant setback for the administration, which had asserted a broad executive-privilege claim that would have protected Miers from making an appearance.

The appeals court said it wanted to know from both sides whether the subpoena would expire once the 110th Congress ends in early January, making the legal dispute moot. The court also asked lawyers to propose a schedule if it decides that it does have jurisdiction to hear the appeal.

"The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for stay, and it should not be construed in any way as a ruling on the merits of that motion," the court wrote.

The court set a briefing deadline of 4 p.m. Wednesday. Miers is supposed to appear before the Judiciary Committee the next day.

Judges Douglas H. Ginsburg, a Reagan appointee, A. Raymond Randolph, a George H.W. Bush appointee, and David Tatel, a Clinton appointee, signed the order.

A Democratic staffer who asked to remain anonymous because the appeal was still pending said the court appeared ready to decide the matter soon after being briefed.

A Justice Department spokesman declined to comment.

Bates' ruling gave Democrats new hope in their quest for answers in the investigation into the firings. Administration critics have accused the White House and Justice Department of targeting the prosecutors because they'd rebuffed Republican demands to seek weak voter-fraud cases against Democrats or because they'd investigated Republican politicians.

Administration lawyers have maintained that presidential aides have absolute immunity from congressional subpoenas, and argue that the doctrine of executive privilege protects confidential communications between the president and his aides.

Bates, a Bush appointee, said the courts had a crucial role in resolving such disputes and that administration officials held "a discredited notion of executive power and privilege."

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