by Glynn Wilson

A Republican-dominated appeals court panel issued a ruling Monday that effectively allows White House aides to President George W. Bush to escape public testimony on the political manipulation of justice until the next Congress convenes next year.

House Judiciary Committee Chairman John Conyers, the Michigan Democrat, says there will be an appeal.

“While the delay caused by this incorrect decision is unfortunate, at the end of the day, I believe Judge Bates’ decision will be affirmed and that Harriet Miers and other key witnesses will appear before the House Judiciary Committee, and that we will get to the bottom of the Bush administration’s disgraceful politicization of the Justice Department,” Conyers said in a statement.

The three-judge panel on the U.S. Court of Appeals for the District of Columbia, two appointed by Republicans, rejected a demand from House Democrats to force two of President Bush’s top aides to cooperate with an investigation about the firings of nine U.S. attorneys in 2006.

The ruling leaves unresolved a major constitutional battle between two branches of government, most likely leaving it to the next Congress with a new president to decide what, if any, punishment should be meted out to current chief of staff Josh Bolton or former White House counsel Harriet Miers.

“The present dispute is of potentially great significance for the balance of power between the legislative and executive branches,” the judges acknowledge. “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,” the judges wrote.

“In view of the above considerations, we see no reason to set the appeal,” the panel concluded. “If the case becomes moot, we would be wasting the time of the court and the parties.”

The ruling blocks an order by U.S. District Judge John Bates issued in July to force Miers to testify before the House Judiciary Committee and Bolton to turn over documents about the controversial firings.

Democrats say the firings, which led in part to the resignation of former Attorney General Alberto Gonzales last year, were politically motivated. That charge was backed up by an internal Justice Department investigation, which last week found “substantial evidence that partisan political considerations played a part in the removal of several of the U.S. attorneys.”

Lawyers for House Democrats have said they plan to continue the investigation during the next sessions, which would require new subpoenas to hear from Miers and Bolten. They could appeal the decision to the full circuit court, but acknowledged that would not likely happen before next year.

They also plan to continue the related investigation of former Bush political guru Karl Rove, who is still in defiance of a Congressional subpoena.

Jill Simpson, the key whistleblower in a related case of the political prosecution of former Alabama Governor Don Siegelman, said the delay is Nancy Pelosi’s fault.

“She blew it, and she needs to pay the price for it,” Ms. Simpson said. “Congress could still hold Rove in contempt.”

Congress was scheduled to adjourn Sept. 26, but are still in session mainly to deal with the financial crisis and Bush’s $700 billion Wall Street bailout bill.

Birmingham attorney Doug Jones, who testified that the Siegelman prosecution was political before the House Judiciary Committee last year, said it is important to remember that this opinion does not address the merits of whether Bolton and Miers should be required to testify.

“Instead, the Court is simply acknowledging that the issue cannot be fully resolved in the courts before this Congress ends. I am not surprised by the ruling as the Courts often will find a way to delay a ruling on a hot political issue during an election season,” Jones said. “The big issue will be whether or not the new Congress will press the issue next spring. Unfortunately, the decision will also likely give the Democratic leadership in the House a reason to avoid a full House vote on Rove this session.”

New York attorney Scott Horton, who has followed these cases for Harpers.org, said Monday’s ruling strips Congress of its oversight authority.

“Today, George W. Bush delivered an address to the annual meeting of the Federalist Society in which he extolled the accomplishments of his judicial appointments policy. At about the same time, in Washington, a panel of the District of Columbia Circuit issued a ruling that made the point even more clearly: they stayed Congress’s investigation of the U.S. Attorney’s and political prosecution scandals,” Horton said. “Under the Constitution, Congress is given three essential powers, one of which, and arguably the most important, is the power of oversight, which is pursued by convening hearings using its subpoena power.

“The appeals court, dominated by Republican appointees, has just rewritten the constitution by stripping Congress of its oversight authority,” he said. “This is judicial activism of the most outrageous sort.”

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Jill Simpson Calls on Pelosi to Find Rove in Full Contempt