The opinion of the court was delivered by: John D. Bates United States District Judge
This matter is now before the Court on defendants' (collectively referred to as "the Executive") motion for a stay pending their appeal of the Court's July 31, 2008 Order. That Order provided that Harriet Miers, former White House Counsel, is not absolutely immune from compliance with congressional subpoenas and must therefore appear before the Committee on the Judiciary of the U.S. House of Representatives ("Committee") to provide testimony. It also required that Ms. Miers and Joshua Bolten, current White House Chief of Staff, produce all non-privileged documents responsive to the Committee's subpoenas and provide a more specific description of any documents withheld on the basis of executive privilege than has to date been provided. A stay of that Order is warranted, the Executive says, because it raises serious legal questions that merit appellate consideration and because, absent a stay, the Executive will be deprived of meaningful appellate review on the absolute immunity question. The Committee responds that a stay is not appropriate because the Court's Order is not appealable and, in any event, the traditional criteria governing a stay pending appeal do not favor granting the Executive's request here. The Executive's motion is now fully briefed and ripe for resolution. Finding the Committee's arguments persuasive, the Court will deny the Executive's motion for a stay pending appeal.
The standard for granting a motion for stay pending appeal is well-established in this Circuit. To prevail on such a motion, a party must show:
(1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (3) that issuance of the stay will not cause substantial harm to other parties; and (4) that the public interest will be served by issuance of the stay.
United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (citing Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). Furthermore, the D.C. Circuit has explained that the "substantial likelihood of success" prong does not necessarily imply that a party needs to demonstrate a 50% chance or better of prevailing on appeal. Holiday Tours, 559 F.2d at 844. Instead, the moving party can satisfy that element by raising a "serious legal question . . . whether or not [the] movant has shown a mathematical probability of success." Id. Put another way, "it will ordinarily be enough that the [movant] has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)).
I. The Executive's Likelihood of Success on the Merits
The Executive has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question "so serious, substantial, difficult and doubtful," id., as to warrant suspending the effect of the July 31st Order pending appeal. To begin with, the Executive devotes almost the entirety of its briefing on this prong to arguing that the Court's Order is "susceptible to serious debate" concerning the threshold decisions relating to the Committee's standing and cause of action.See Defs.' Mot. at 5-6. But even assuming that the Executive's proposition were correct -- which it is not -- its reliance upon that point is misplaced. The D.C. Circuit has explained that the stay pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself, see Philip Morris, 314 F.3d at 617. Here, however, the denial of the Executive's motion to dismiss is not presently subject to appeal because it is not a final order. See Bombardier Corp. v. National R.R. Passenger Corp., 333 F.3d 250, 253 (D.C. Cir. 2003) ("[C]courts of appeal have appellate jurisdiction over only 'final decisions' of the district courts. 28 U.S.C. § 1291 (2000). Ordinarily, orders denying motions to dismiss are not final decisions because such orders ensure that litigation will continue in the district court."). Thus, issues relating to the denied motion to dismiss -- however important they may be -- do not factor into the likelihood of success on this appeal.*fn1 Indeed, as the Committee aptly put it, "these [threshold] claims are not appealable at this stage of the litigation, and thus an appeal on these bases -- let alone a stay pending appeal --is inappropriate." Pl.'s Opp'n at 6 (footnotes omitted).
Turning to the absolute immunity question, then, the Executive states that "not a single judicial ruling has ever required a senior Presidential adviser to appear before a Congressional committee." Defs.' Reply at 5. That alone, the Executive contends, is sufficient to "raise a substantial case on the merits of the immunity claim, . . . [which] supports preservation of the status quo pending appellate review." Id. The Court disagrees. As previously noted, "the asserted absolute immunity claim here is entirely unsupported by existing case law." Comm. Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 99 (D.D.C. 2008). Moreover, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court rejected the notion that senior presidential advisors -- unlike the President himself -- are absolutely immune from suits for money damages arising out of their official conduct. Id. at 807. And because the Executive offers no additional basis distinct from the justifications for absolute immunity already rejected by the Supreme Court there, this Court noted that "[t]here is nothing left to the Executive's primary argument in light of Harlow." Miers, 558 F. Supp. 2d at 101. The Executive offers no reason to disturb that conclusion. Without any supporting judicial precedent whatsoever -- and, indeed, in the face of Supreme Court case law that effectively forecloses the basis for the assertion of absolute immunity here -- it is difficult to see how the Executive can demonstrate that it has a substantial likelihood of success on appeal, or even that a serious legal question is presented. The Executive's argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important -- primarily because it involves the relationship of the political branches -- does not transform the Executive's weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee.
II. The Executive's Asserted Irreparable Injury
The Executive next insists that it will suffer serious irreparable injury absent a stay in this case because it will be denied the opportunity for meaningful appellate review. That is so, the argument goes, because "the Court of Appeals cannot wind back the clock to prevent Ms. Miers from testifying, or to relieve the Executive from court-ordered obligations over withheld documents, if the Court's Order is not stayed." Defs.' Reply at 7. Although there is some merit to the Executive's asserted harm, there are several factors that mitigate the extent of any injury incurred by the Executive.
Declining to grant a stay here, the Executive contends, "would impose the very harm --compelled appearance of the President's closest advisors -- that the defendants say the Constitution prohibits, and which they seek to appeal." Defs.' Mot. at 8. And once Ms. Miers appears to testify, the Executive argues, "her claim of immunity will be lost." Defs.' Reply at 6. That is only partially true, however. The Executive is correct insofar as the prospect of appellate review prior to Ms. Miers appearing is significantly diminished absent a stay.*fn2 But that does not preclude the Executive from preserving that argument for subsequent appeal. Ms. Miers could, for instance, appear to testify before the Committee but explain that she is doing so under protest and that it is the Executive's position that she remains absolutely immune from compulsory congressional process. That would seem to preserve the absolute immunity issue for ultimate appellate consideration; indeed, that is consistent with the familiar method of objecting to evidentiary rulings at trial, for example, in order to preserve a trial court's initial decision for appellate consideration. So long as there is ultimately a privilege issue in dispute, then, the Executive can continue to assert its claim to absolute immunity.*fn3 And because Ms. Miers remains fully capable of asserting executive privilege on a question-by-question basis, there is no risk whatsoever that any confidential or privileged information will be disclosed during the course of her testimony.
Thus, the only "harm" that is truly irreparable is the mere fact that Ms. Miers must appear before the Committee. The Executive seizes on that and likens this situation to a denial of qualified immunity from trial, which "generally constitute[s] irreparable injury . . . because of the irretrievable loss of immunity from suit." McSurely v. McClellan, 697 F.2d 309, 317 n. 13 (D.C. Cir. 1982). But that overlooks the significant differences between absolute or qualified immunity from a civil damages lawsuit and the Executive's asserted immunity from congressional testimony here. Immunity from damages in a civil suit entails immunity from the entire process of litigation: lengthy (and costly) pre-trial discovery, depositions, and ultimately trial itself, as well as any damages. Taken together, those obligations amount to a significant burden on a government official and all of those costs will have been incurred for no reason in the event that the defendant is ultimately found to enjoy immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("[T]he 'consequences' [of litigation against governmental officials] with which we were concerned in Harlow are not limited to liability for money damages; they also include 'the general costs of subjecting officials to the risks of trial -- distraction of officials from their ...