Justice Department lawyers told Bates at a hearing Wednesday that they intended to ask the appeals court to overrule the judge. Justice Department lawyer Carl Nichols indicated the government would file court papers to that effect no later than today.
Investigators are trying to determine whether Miers and Karl Rove, Bush's former chief political advisor, were involved in the 2006 firings. Democrats have alleged that the prosecutors were singled out for failing to bring corruption and other cases that benefited Republicans and that the idea was hatched at the White House. Rove has also refused to appear before the House and Senate Judiciary committees and has been held in contempt by both panels.
The Justice Department has argued that the former Bush aides are immune from having to testify because of the doctrine of executive privilege, which is grounded in the principle of separation of powers and is intended to insulate presidential policymaking decisions.
Officials have also argued that, because U.S. attorneys are presidential appointees, Congress has no authority to question executive-branch advisors about decisions to fire them.
The Justice Department effort to block the lower-court ruling would be considered by a three-judge panel that is randomly assigned to hear emergency appeals. The federal appeals court here, whose alumni include Chief Justice John G. Roberts Jr. and Supreme Court Associate Justice Antonin Scalia, has a generally conservative reputation.
If the appeals court blocks Miers' testimony, even temporarily, it could allow the Bush administration to drag out the proceedings until after the election.
But several legal scholars said they doubted that even a conservative panel would intervene. Bates himself was appointed by Bush to the federal bench in 2001, they noted, and he was likely to be shown deference.
They also said his central ruling appeared to be indisputable.
"The Supreme Court has never given any indication that the White House counsel or people who work for the president can just ignore a subpoena," said Cass R. Sunstein, a professor at the University of Chicago law school. "It would be very surprising to think that the White House official does not even have to appear to assert the privilege."
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rick.schmitt@latimes.com
