by John W. Dean

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.
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