Senior White House Aides Can Be Subpoenaed, Says Bush Appointed Federal Judge
by Damozel | Legal expert Marty Lederman thinks the 93-page opinion--- an extraordinarily thorough, scholarly and
thoughtful opinion -- surely one of the best opinions ever written on
questions relating to executive/congressional disputes---will be a 'landmark decision.' District Judge John Bates (a George W. Bush appointee, who Lederman points out, 'worked on the Starr Whitewater team'):
There are powerful reasons supporting the rejection of absolute immunity as asserted by the Executive here. If the Court held otherwise, the presumptive presidential privilege could be transformed into an absolute privilege and Congress’s legitimate interest in inquiry could be easily thwarted. . . . [I]f the Executive’s absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege. For instance, surely at least some of the questions that the Committee intends to ask Ms. Miers would not elicit a response subject to an assertion of privilege; so, too, for responsive documents, many of which may even have been produced already. The Executive’s proposed absolute immunity would thus deprive Congress of even non-privileged information. That is an unacceptable result. (via Balkinization; more)
Judge Bates rejected the notion that Congress has no legitimate oversight function because the subject matter of the investigations is presidential removal of the U.S. Attorneys (a principal argument of the administration):
Simply put, the Executive characterizes the Committee’s investigation far too narrowly. It is not merely an investigation into the Executive’s use of his removal power but rather a broader inquiry into whether improper partisan considerations have influenced prosecutorial discretion. Similarly, in Nixon v. Adm’r Gen. Services, the Supreme Court indicated that Congress’s “need to understand how . . . political processes had in fact operated in order to gauge the necessity for remedial legislation” was a legitimate topic for investigation. 433 U.S. at 453. Once again, the same can be said of the Committee’s investigation. It defies both reason and precedent to say that the Committee, which is charged with oversight of DOJ generally, cannot permissibly employ its investigative resources on this subject. Indeed, given its “unique ability to address improper partisan influence in the prosecutorial process . . . [n]o other institution will fill the vacuum if Congress is unable to investigate and respond to this evil.” [quoting Brief of Former United States Attorneys at 10-11] (via Balkinization; more)
If the House Judiciary Committee issues subpoenas, Harriet Miers and Josh Bolten---both of whom have already been held in contempt--- must respond...in person. (The Gavel; NYT) [Remember when Miers didn't appear and they yelled at her empty chair? Good times.] Furthermore, they have to turn over all non-privileged documents. (The Gavel) (I spot a catch in this last).
Patrick Leahy in the Senate and his counterpart John Conyers in the House---two of my very favorite Congressional Dems--- were on hand to give their comments.
“I have long pointed out that this administration’s claims of executive privilege and immunity, which White House officials have used to justify refusing to even show up when served with congressional subpoenas, are wrong,” said Senator Patrick J. Leahy, Democrat of Vermont who is chairman of the Senate Judiciary Committee....
“Today’s landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law,” said Representative John D. Conyers, the Michigan Democrat who is chairman of the House Judiciary Committee.(NYT)
But let's not get too elated. No doubt but that the ruling will be appealed. (NYT)
“We are reviewing the decision,” Emily Lawrimore, a White House spokeswoman, said. Before the decision was handed down, several lawyers said it would almost surely be appealed, no matter which way it turned, because of its importance. (NYT)
Judge Bates stated that the administration's claims on behalf of its senior aides 'is without any support in the case law':
Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706). (via Emptywheel; more)
I guess, as conservo-blogger Ed Morissey puts it, you could call this Bush taking one on the chin.
Morissey commented on what he calls this 'game of chicken.'
[T]he ruling comes as both a legal and a public-relations setback for the administration. They had played a game of chicken with Congress on the subpoenas, probably hoping to run out the clock more than anything else. They can still do that with appeals, perhaps all the way to the Supreme Court, which won’t even meet again until October, but the rather emphatic ruling by Judge Bates undermines their case for the effort, at least on a political basis.
The ruling may not make a lot of difference, practically speaking, for the investigation.. Bolten and Miers will likely take Bates’ advice if forced to appear and simply refuse to answer any questions. The documents under subpoena will force another fight over which specifically should be covered under executive privilege, and which should not. That will also take months to sort out, and in the end Congress may lose interest in the issue before that takes place. [More]
I wonder why conservatives bloggers are so unconcerned about these
claims of immunity? Picture this, Republicans: an Obama
administration making the selfsame claim.
Marty Lederman
points out that many Republicans in office today have resisted the
president's (and Rove's) aggrandizement of the executive branch's
authority [paragraph breaks added]:
When the history of the Bush Administration's executive aggrandizement campaign is finally written, a very large and important part of that story -- a central theme in Jane Mayer's new book, for instance -- is just how many very strongly conservative Republicans resisted the Cheney/Addington/Gonzales/Rove agenda.
That includes not only officials within the Executive branch who are very strong defenders of executive prerogatives, such as Jim Comey, Jack Goldsmith, Pat Philbin, Peter Keisler, numerous JAG lawyers, including Alberto Mora and Tom Romig, various Republican U.S. Attorneys who resisted Karl Rove (and paid the price), Will Taft, John Bellinger, etc., but also Republican jurists such as Anthony Kennedy, Sandra Day O'Connor, Michael Luttig, and in recent days Judges Sentelle, Wilkinson, Williams and Bates. Many of these executive and judicial officials did not, of course, hesitate to defend or uphold strong assertions of executive power or statutory construction in many instances -- suffice it to say that I've strongly disagreed with many of them on some such questions.
But they -- and apparently many more like them, some of whom remain anonymous -- also all took quite extraordinary steps to reject some of the most extreme views of the Bush/Cheney Administration, to stand in the way of some of the more outrageous things that the Administration has tried to do, and, as in today's decision by Judge Bates, to treat the rule of law with rigor and respect. (Balkinization)
Anyway, as Dan Sweeney said at Huffpost:
Just yesterday, Karl Rove, who has thus far avoided testifying by all manner of clever schemes, from citing the White House's desire to stand up for the executive branch to being conveniently out of the country, dismissed the Judiciary Committee's contempt recommendation as "ludicrous." Today, he continues his inexorable slide toward actually having to show up on Congress' doorstep.
Law professor Jonathan Turley comments:
For months, many experts (including myself) have been arguing that the Bush Administration’s claim of privilege in the congressional investigations (and the refusal to comply with subpoenas) is untenable, if not laughable....The decision not only puts pressure on Mukasey to stop his obstruction of the process, but it clearly reaffirms the view of many that Karl Rove is also in flagrant contempt....
[I]f these officials are clearly in contempt, then Rove is an even more egregious case. Rove virtually fled the jurisdiction to avoid testifying. The House this week reaffirmed his criminal contempt status... While this decision does not directly cover Rove, the underlying claims rejected by the court are largely the same. The Democrats will likely fire off a new letter to Mukasey. However, if he will not yield to the courts or to Congress, it is time for Congress to use its own inherent contempt power. (More)
Nancy Pelosi says that a citation of contempt for Karl Rove is possible. (The Hill)
Memeorandum has blogger reactions here.
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