The White House has long been obvious in its effort to run out the clock on the constitutional challenge to the subpoenas for former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten. As a court found, the White House arguments are meritless, but the Administration has been relying on the calendar more than the Constitution. This week, that strategy succeeded with an appellate court issuing a stay that guarantees that the subpoenas will expire with this Congress.

The U.S. Court of Appeals for the District of Columbia granted the White House a stay after concluding that the matter will not be resolved before the end of this Congress: “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. In view of the above considerations, we see no reason to set the appeal. If the case becomes moot, we would be wasting the time of the court and the parties.”

Just last week, the Department of Justice’s Inspector General and Office of Professional Responsibility issued a 356-page report on the U.S. Attorney firings that “found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.” However, the Congress has been stymied by an obstructionist position of Attorney General Michael Mukasey. The Democratic leadership was unwilling to use the full powers available to it to force the question, including the possible use of inherent contempt authority. As a result, this was a pre-ordained conclusion. Once again, the entire exercise seems designed for public consumption to give the appearance of aggressive pursuit of these officials.

The next Congress can renew this effort. However, it is widely expected that it is not likely to continue with the new Administration.

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