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Judge Bates Slams the Bush White House's Claims of Congressional Immunity: Why There May Be No Consequences for the White House, Despite the Clear Ruling
When the random selection system used by the U.S. District Court for the District of Columbia sent the case of Committee on the Judiciary, U.S. House of Representatives v. Harriet Miers, et al to the courtroom of Judge John D. Bates, the White House was no doubt thrilled. Earlier, Judge Bates had sided with Vice President Cheney's refusal to produce documents requested by the Comptroller General.
However, on July 31, when Judge Bates handed down his decision, he ruled in favor of the Judiciary Committee, not the White House, and the thrill was surely gone. The White House had pushed the law beyond its boundaries, and this time, the Judge pulled them up short.
The Fight over Subpoenas to the White House Regarding the U.S. Attorney Firings
After months of the White House's stonewalling requests for information about the firing of nine United States Attorneys in late 2006, the House Judiciary Committee subpoenaed former White House Counsel Harriet Miers to testify, and subpoenaed President Bush's Chief of Staff Joshua Bolten to testify and produce documents. Relying on instructions from President Bush, neither appeared and no documents were produced.
Accordingly, the Judiciary Committee and then the full House held both Miers and Bolten in contempt. The matter was referred to the U.S. Attorney for the District of Columbia for presentation to a criminal grand jury pursuant to the U.S. Code. Attorney General Mukasey, however, instructed the U.S. Attorney to not proceed to a grand jury because Miers and Bolten were not acting in a criminal manner by following the president's instructions.
This left the Judiciary Committee - and the House of Representatives - with two options: They could file a civil lawsuit to enforce their subpoena, or the House could exercise its inherent power to deal with contempt by holding its own trial. With the backing of the House (by a vote 223-32 on February 14, 2008), the Judiciary Committee chose the first option, and filed a civil lawsuit. (Wisely, because Judge Bates did not believe the House had inherent authority against presidential aides acting pursuant to his instructions.)
The White House responded on behalf of Miers and Bolten by seeking to dismiss the lawsuit. It claimed that Miers and Bolten, as presidential aides, had absolute immunity from being compelled to testify before Congress or produce the requested documents.
Judge Bates's Opinion: Why His Tone Should Give the White House Pause
Without reaching the question of whether the president might claim executive privilege in this instance, Judge Bates issued a closely reasoned and detailed opinion legally slamming the White House's claims. The ruling is instructive. Not surprisingly, Georgetown law professor Marty Lederman, a popular legal blogger, openly praised the ruling, calling the opinion a landmark. Rather than rehash Lederman's on the mark analysis of the Bates ruling, I will instead focus here on its implications.
Throughout the opinion, Judge Bates reminds the Executive Branch that while he is not ruling on the matter of "executive privilege," if the Executive and Legislative Branches cannot resolve this matter, then the Judicial Branch can and will. Indeed, Judge Bates opens his opinion by stating that the "executive privilege claims that form the foundation of the Executive's resistance to the Committee's subpoenas are not foreign to federal courts either."
Judge Bates relies on landmark cases spanning the nation's history to make his point. He writes that from "Marbury v. Madison (1803) ('[i]t is emphatically the province and duty of the judicial department to say what the law is'), through United States v. Nixon (1974) (the judiciary is the ultimate arbiter of claims of executive privilege), to Boumediene v. Bush (2008) (rejecting regime in which the political branches may 'switch the Constitution on or off at will' and, rather than the judiciary, 'say "what the law is"'), the Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive issues of separation of powers."
Judge Bates then continues with the precedent most directly applicable: "In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity," which he points out are "certainly not unprecedented, as the Executive contends." Judge Bates closes his opinion by once again citing these cases.
Even more importantly, there is a subtext tone that runs throughout this opinion that sends a clear message. Judge Bates himself once served as an Assistant United States Attorney in the Department of Justice (DOJ); he is thus unlikely to be very sympathetic to the White House politicization of the nation's federal prosecutors. And indeed, the tone of his opinion suggests a low tolerance for the White House's refusal to discuss the firing of United States Attorneys. If the Bush White House and the DOJ understand this opinion otherwise, they are kidding themselves. A careful, fair reading of this opinion should send the very message Judge Bates plainly intended: He is not going to tolerate stonewalling on this issue.
This is not a matter of national security, as to which courts cut presidents great slack. Nor, Judge Bates makes clear, is the requested information a subject about which Congress should have no interest, as the White House claimed. According to the White House, the House of Representatives has nothing to say about it when a president hires or fires a U.S. Attorney. But, quite to the contrary, Judge Bates does points out that the Committee's inquiry "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."
Judge Bates adds, employing the firm tone that typifies his opinion, that it "defies both reason and precedent to say [as the Executive does] that the Committee, which is charged with oversight of DOJ generally, cannot permissibly employ its investigative resources on this subject." Indeed, Judge Bates points out - citing the amicus brief by former U.S. Attorneys - that 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."
Can The Bush White House Stall On Compliance with Judge Bates's Ruling ?
After Judge Bates had smacked down argument after argument presented by the Executive Branch, one matter did give him pause. "The 110th Congress expires on January 3, 2009. Unlike the Senate, the House is not a continuing body," he noted. Thus, when Congress adjourns, so too will the subpoenas for the testimony of Miers and Bolten (not to mention for the testimony of Karl Rove, whose contempt citation is pending before the House for the same reasons the contempt citations of Miers and Bolton are).
Judge Bates addressed the question of mootness head on: "On the Committee's side, the entire House -- and thus any outstanding subpoenas -- will lapse on January 3, 2009, and the basis of this lawsuit will cease to exist. To be sure, the incoming House of Representatives may elect to re-issue similar subpoenas, but that remains speculative at this juncture. Similarly, the incoming executive administration may decline to pursue the assertions of immunity and executive privilege that form the foundation of this dispute." Again, note the tone Judge Bates employs in his discussion of the matter of Bush's leaving office and still claiming privilege: "A former President may still assert executive privilege, but the claim necessarily has less force, particularly when the sitting President does not support the claim of privilege."
Judge Bates continues, "As with the incoming Congress, there is no way to predict whether the new administration will support the assertions of privilege made in this case. There is also the likelihood of appeal of this decision and, given the significance of the issues involved, a stay pending appeal is at least possible. Thus, although proceedings before this Court could be concluded prior to January 2009, any appeals process may not run its course before that date. At that point, the case would arguably become moot. Nevertheless, the Court concludes that this concern does not counsel against entertaining this case." Accordingly, Bates issued the decision ruling against Bush's aides.
If I were to wager, I would say that President Bush will now stall. The White House will appeal, and the issue will become moot. We will get a clue about what the Democrats will do when the House returns from its summer recess and addresses Karl Rove's pending contempt citation. Given her history, Speaker Pelosi would no doubt like all this to go away. Remarkably, she has not shown much concern about the Executive Branch's denigrating the Legislative Branch.
Thus, Pelosi will likely go through the motions but wait to see what happens in November. If McCain is elected, she might do something before her caucus takes away her speakership; if Obama is elected, she will say, "Let's get all this behind us so that the Congress will not be fooling around with Bush once the new president arrives." That's a shame - for the Bush Administration should be held accountable so that the Department of Justice's integrity is never again compromised with such shamelessly political firings. Yet it seems that Speaker Pelosi would rather be loved than respected, and will sacrifice long-term institutional concerns for present-day popularity.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
Copyright © 2008 FindLaw
28 Comments so far
Show AllPelosi would rather be loved than respected? Excuse me. How does one "love" someone who is not worthy of trust and respect?
This is only another of the unprecedented abuses imposed by this administration. Their war on science, stem cell research , and family planning to apease the energy cartels and the radicalreligeous right are other exampes.
It the past is any guide to the future, this administration will survive this event unscathed.
Blame for the disastrous consequences of these unprecedented abuses lie mainly on our legislators for defaulting their sworn duties by tolerating these outrages, and our apathetic populace for standing by and doing nothing
Under no circumstances should the depredations of the Dubya, Cheney, & Co. be allowed to swept under the rug as Nancy Pelosi is want to do for some unfathomable reason(s). It would set a truly bad precedent if the members of the Bush crime family are allowed to get away with their various misdeeds. What is truly odd is that Pelosi is allowing for the emasculation of the Congressional branch of government, when one considers that politicians are craven power hungry types by mere definition.
Herewith a comment made to Glenn Greenwald's July 31st post on Judge Bates' decision:
This layman welcomes this decision, as I welcomed Judge Anna Diggs Taylor's August, 2006 decision ruling the Executive Branch's reprehensible wiretapping illegal and contrary to the Constitution.
So IMO, this decision is to be applauded; in these desperate times, any sign that the judiciary still has a vertebrae and a pulse is heartening.
But the question is whether the slow drip of judicial pushback will arouse Congress, or a Democratic administration, or a significant bloc of citizens from their equally reprehensible torpor. Hard to be sanguine about this prospect.
The judiciary is necessarily the last bastion of personal ethics and principle; thus, an individual judge with personal integrity intact may still rule without fear or favor, and let the chips fall where they may. But, to restate an opinion-in-progress, both the executive and legislative branches have morphed into para-corporate institutions that retain traditional and customary procedures, but are populated by executives or managers-- technocrats-- each operating individual franchises.
Cooperation is required to make the sausage of legislation, and the legislation itself has ethical and moral components-- and of course political rhetoric is laden with ethical values. But with few exceptions, our political elite has forsaken the formerly-settled notion that office-holders have a higher duty to the Constitution that at least occasionally requires them to leave quotidian business-as-usual, and undertake politically inconvenient and risky duties to redress profound wrongdoing that undermines our constitutional republic.
The Kuchinches and Feingolds are exceptions. Regardless of their prowess at spellbinding speechifying and lip service to high ideals such as the rule of law, in practice our corporatized, money-obsessed incumbents eschew such service to ideals and trans-political duties as quaint and virtually obsolete. Everything is reduced to political calculus, and there's no more room for the notion that it is even possible to act responsibly without regard to such political calculus. Actions speak louder than words; by their fruits ye shall know them.
Which is why I am quite certain that our next president, Republican or Democrat, and Congress will remain the Immovable Object to the judiciary's salutary but Resistible Force. The slender hope is that We the People will become sufficiently invigorated by these discrete judicial victories to threaten the professional political class' business.
The American People do not need to have the Congress make any move at all to bring the Bush administration to Justice.
In fact Impeachment proceedings in the face of these massive crimes would be like fining someone for "discharging a firearm within the city limits" after intentionally shooting and killing their next door neighbor.
The American People can move either through an organized effort from the "citizens"; or call to the UN to have the entire Bush administration held accountable for War Crimes in accordance with the Geneva Accords and the Nuremberg Accords.
To expect the Congress to do so would be ridiculous since many of them were complicit, if not direct participants.
In fact, if the American people do not move in a similar manner to do just that; they will loose all hope of ever keeping any respect of the world's people and in fact may bring more disasters upon themselves from lack of their own action. And they could rationally expect those disasters to dwarf 9/11.
To expect the world not to hold the American People as a whole responsible is far beyond any foolishness the American people have been capable of thus far.
The American People are being watched by a world that becomes stronger and stronger each day. Taking into consideration their behavior these past sixty or so years the American People should be exceptionally worried.
But then, if I had written the same thing in Nazi Germany in 1936, people would have been laughing at me then as they much be now-----while they were on the way to the phone to call the Gestapo.
Oh, by the way,Germany is still "occupied by American troops", and the Russians would still be there had the Soviet Union survived.
So laugh all you want..............
The USA is a rogue nation; dangerous, unpredictable, and capable of turning on their Allys and making them enemies. They need to show the world that a true Democracy is of the people and by the people and for the people, or those other "people" who may be subject to the USA , could collectively, make the USA an amusement park---after several generations of occupation.
don't take my word for it----history is full of rogue nations that were taken down-----they all thought they were invincible also.
Put it up for a referendum. Let the people decide what if any consequences will be.
Except for prison no consequences are possible. You can't hurt a sociopath's feelings because they don't have any.
Such measures as censure mean nothing to them.
......"[n]o other institution will fill the vacuum if Congress is unable to investigate and respond to this evil."
Thank you, Judge Bates!
"On the Committee's side, the entire House — and thus any outstanding subpoenas — will lapse on January 3, 2009, and the basis of this lawsuit will cease to exist"......."given her history, Speaker Pelosi would no doubt like all this to go away. Remarkably, she has not shown much concern about the Executive Branch's denigrating the Legislative Branch."
No, neither has she shown much concern about the Executive Banch's burning of the United States Constitution; after all, it's just a "goddamned piece of paper".
Cindy Sheehan is now on the ballot and running against Nancy Pelosi. I hope Californians finally tell Pelosi to take-a-walk!
Actually, I do believe the Constitution is just a goddamned piece of parchment. Bush can't get anything right.
I think Native Son has this just about right. Americans may blame Bush, the Neo-Cons and religious right for their "mistakes", but if nothing is done to bring them to account, the rest of the world will blame Americans for the crimes committed in their names.
At the end of the war, most ordinary Germans claimed that they knew nothing about the atrocities committed in concentration camps or about the existence of the death camps. When this war is over, Americans will not be able to say that they didn't know about the lies that led them to war, the torture, the CIA's "black sites", the renditions, or other crimes committed by their government in their names.
I believe that the failure of Americans to hold those who led them into the Vietnam War to account is the single greatest factor leading to the situation as it exists now. A failure to act against the crimes of this government this time will lead to more, even greater disasters in future.
NativeSon August 9th, 2008 2:01 pm
"The American People are being watched by a world that becomes stronger and stronger each day."
You know I don't buy into America "the Great Satan" thinking, so I won't bother to say anything about that, and you do have some valid points as does Jack Canuck.
I am curious though as to which nations you consider to be getting stronger if you don't mind saying?
Impeach Pelosi. They all sit on the same boat.
Vote anybody but the two parties.
I just finished reading "Worse than Watergate" by John Dean. I am now reading "Conservatives without Conscience". This man has rendered our nation a valuable service. We need to consider very seriously what he has to say. John Dean is far more qualified to be President of the United States than the choices we have at the present time. However, we are such idiots that we will never have the most qualified people in this country to subject themselves to the rigors of the process. Therefore on election day we will always have lessors from which to choose. That is not their failure but ours. When we refuse to hold our elected officials accountable for their lack of performance in their official duties and outright lies then we will undoubtedly get more of the same.
As citizens and guardians of the Constitution for our children and grandchildren we have an obligation to demand accountability from our elected officials. Speaker Pelosi should be driven from office as she is not performing her Constitional duties.
Tomas More
Russia is most certainly getting stronger. They hold massive cash Reserves and have locked up much of the worlds supplies of natural gas with Commercial deals. The EU grows ever more relaint on Russia for ebnergy supplies.
Russia no longer needs a massive army on its western borders. They can just trun off the gas.
China also grows stonger. There GDP growth nothing short of astounding and will within 20 years have a larger economy then Americas.
They are revamping their military from the bottom up and while not as technologically advanced as Americas, they have something America does not. That is lots of wealth. Massive wealth flows into China.
America is in debt...owing trillions to the Chinese, Russians and Arabs.
The EU is also growing in strength. Not so much as a Military power, but as an economic one. Germany as example, an economy much smaller then Americas, is a larger exporter of Manufcatured goods then is America.
You do not measure "power" by ones Military alone. In 1945 America had 50 percent of the worlds GDP. In 1970 they were the largest creditor nation in the world.
Today they are down to 22 percent therebouts and dropping GDP wise and are the owlrds largest debtor.
Yes the power of other nations increases.
PK
As one of the 'American people' you've referred to, can you give me some concrete examples of what I can do? What I've been reading seems to be in generalities ...
GwNorth August 9th, 2008 11:40 pm
Seems a pretty fair list. I agree if we don't get our oil needs under control and restore our manufacturing base, we've got a problem.
I would say that Russia depends almost entirely on energy production for its wealth at the moment, that will change I think.
China as an Autocratic Capitalistic country will of course be our greatest competitor, but they have economic problems of their own.
You are aware that I don't buy the old communist assertions that all ill flows from capitalism and America has been the cause of all the worlds ills since 1AD. But believe me I don't for one minute think military power is the measure of greatness.
You are screwed without it as a matter of historical fact and if you're going to have it, it's better to have the best, which thankfully we do.
I am well aware of our failings, our mistakes, our stupidities and over the last 25 years (and before) our ignorance in allowing "our captains of industry", our "robber Barons" if you will, to sell us a bill of goods about "free trade" and "global competition," "jobs Americans won't do" and "trickle down economics" as they sent our factories abroad, sent our jobs with them, imported cheap labor to take the jobs that were left here, dumped their responsibilities to their past employees, protected their profits overseas from taxes here, on and on.
Its our fault for letting them, its our fault for accepting false explanations simply because it allowed up to feel morally superior, our fault because even a high school kid should be able to see as we are being sold a bill of goods about "global trade," "free trade" while every other country is going back to the old mercantile form and practicing nationalistic trade policies.
I see all our faults but I still love my country and believe we will once again fix our problems.
Bush doesn't need to stall or appeal. He can just ignore the courts, since only Congress can do anything to hold him accountable - and Pelosi has taken their one enforcement tool "off the table."
GW NORTH: Thank you for sharing the statistics. We might also add the union of South American nations to your list. What is good about these developments is that any unilateral power tends to fall under thrall to its own potency. In the case of the US, it's too aptly defined through force first, rabid militarism. Therefore, the development of counterbalancing blocks of power (or influence, if you prefer) can only be a good thing for the evolution of this planet, and any possible hope of reining in the trespasses of a model of capitalism that as John Perkins has well noted, relies on a fist in its glove.
Wouldn't it be the ultimate irony, if when McCain realizes he is losing, and sees that the majority want Bush et al to face the music, that he states he will favor testimony from these criminals, and watch them all be rendered unto the little Caesar. The ultimate of all ironies of my life would be watching the silly little smile on his face wipe the same silly smile off the Bush junta's faces.
Hi John. Do you know much about the The Great Southwest Corporation?
Militarism and Corporatism are the greatest dangers that America faces. Not terrorism, not a resurgent Russia or a rearmed China taking its place on the World Stage.
Militarism and Corporatism as being practiced by the United States, is in essence Fascism as defined by Mussolini.
I really do not see the United States reversing course in the near future. The Militray is a sacred cow to both Political parties with both of them advocating making it even larger.
As to industrial might, how will that be restored with the Corporations so in charge of US Policy, both foreign and domestic?
The GDP Growth in the United States over the past 30 years was all smoke and mirrors. It was based upon debt. It was based upon the manipulation of currencies, and financial intruments. It was based upon the Political leaders of both parties changing the way things are measured in order to make the numbers more palatable.
Furthermore, I have long contended that GDP growth is ultimately meaningless unless the system measures the cost to society of obtaining said growth.
Clear cutting a forest on a mountain slope adds to GDP growth. Paying millions or billions of dollars in damages to treat water that is now polluted because said slope was denuded of trees adds to GDP growth.
The tue "winners" will be the countries that take control over their own resources, and develop sustainable economies where their natural resources and their people are protected.
This will never happen in Corporatist America. America is being plundered of her wealth by those Corporations and by the blind unwavering allegiance to militarism.
I don't care if the Speaker wants to be loved or respected. In fact she can go into the porn business for all I care, but she is not following the Constitution that she took an oath to protect.
She should be removed from her office as Speaker and as a member of the House for not impeaching Bu$h the inferior and Shotgun Dick. If some of the reports of her approving torture etc. are true she is also a war criminal.
GwNorth August 10th, 2008 4:09 pm
There is is absolutely no danger to America of Militarism, I'd say not to India or Japan either. Its a very real danger militarism from China and a resurgent Russia.
"As to industrial might, how will that be restored with the Corporations so in charge of US Policy, both foreign and domestic?"
Thats a fair question. I'd say we are going to have to kick the Corporations to the curb and leash the CEO's. And fairly quickly. To do that we'll also have to stop allowing them to game us and divide our concentration.
"Militarism and Corporatism as being practiced by the United States, is in essence Fascism as defined by Mussolini."
That is one view, of course I don't agree with you. Fascism is a word thats bandied about a lot, its essentially meaningless at this point without context.
"I really do not see the United States reversing course in the near future. The Militray is a sacred cow to both Political parties with both of them advocating making it even larger."
Actually we have a rather small military by historical standards. Even under Eisenhower in the fifties we were at 3 million.
Any economist will tell you that China economically is the 8oo pound gorilla in the room.
Whaen you measure American companies GDP worldwide, under our control our GDP is better than you'd think. Our economy is like the 2000 pound mama gorilla for now. Its popular to denigrate our economic power but even our debt is a very small portion of our economy. Very small.
Don't get me wrong, we have loads of problems, but reports of our demise are greatly exagerated as usual. Its sort of like save our forests, except only about 3% of our land mass is developed.
Think about it this way, if my state broke away from the US, I believe we'd be the 8th largest economy in the world. Peoplev forget we aren't monolithic. When you say America you are talking about a lot of diversity. Not faux diversity like our effete academics speak of, but real, intellectual, racial, cultural diversity that combines into the best we all have. Hard to beat.
But you are right, if we don't contain the Corporations and their servants, they may yet split us up and destroy the country.
"The tue "winners" will be the countries that take control over their own resources, and develop sustainable economies where their natural resources and their people are protected."
Now thats an interesting statement. It excludes China, Russia and India by its parameters. So I'm really interested in who you think those countries might be?
Pax
shakker August 10th, 2008 7:00 pm: "I don't care if the Speaker wants to be loved or respected. In fact she can go into the porn business for all I care..."
Sorry. I just had a visual of that. Ewwwwww
NativeSon has it exactly right. It's our reponsibility to bring this into being.
The only court that maters is the Supreme court, and my money is that they will support the White House in a 5 to 4 decision. The most important thing the next president does, is appoint judges that view the Constitution as a living document.
For the record: Pelosi originally said impeachment was "off the table" because, after the fall of Bush/Cheney, SHE'd be president! Then, she continued to say it for the same reason the Dems supported all the Reps' atrocities: they both profit equally from illegal ill-gotten gains when the Constitution is abused, i.e. secret-gathering by illicit wiretap swings both ways. I'm voting Green.
shakker August 10th, 2008 7:00 pm
I don't care if the Speaker wants to be loved or respected. In fact she can go into the porn business for all I care [...]
________________________________
I don't think the porn business would have her.
They have their standards, you know.