Bates on July 31 rejected White House arguments that presidential confidants are protected from congressional subpoenas by executive privilege, giving free rein to Democrats who have been trying to get President Bush's aides to testify on the dismissal of nine federal prosecutors.
Without a quick stay of the ruling, Miers and Bolten may be forced to testify before an appeal can be heard, the two said in a court filing. Democrats have announced they would schedule hearings in September, at the height of election season.
"Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers," the Bolten and Miers request said.
A stay would also benefit Republicans, since the subpoenas expire at the end of the year, not long before Bush leaves office.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said White House lawyer Fred Fielding sent him a letter saying the administration would not let Bolten testify until the appeals process is finished.
"This continuing contempt of Congress is another example of the lengths to which this administration will go and how it uses government lawyers to protect its actions from scrutiny and increase its power, rather than respect the rule of law," Leahy said.
Bates' decision gave some teeth to Congress' power to investigate the executive branch, because earlier disputes had been settled through political compromise instead of the courts.
The judge has scheduled a conference between the litigants on Aug. 27 to take stock of whether negotiations over the subpoenas had progressed.
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