Judge Bates Bodyslams Bush
It's hard to pull out just a few stinging putdowns by Federal Judge John D. Bates of the Bushies argument for why Karl Rove, Harriet Miers et al. can blow off a subpoena to appear before Congress. My favorite is:
"The Executive presents a litany of contrary arguments, all of which are unavailing."
It gets worse from there so make up some popcorn and enjoy ...
Recall that last June, Congress subpoenaed former Bush legal counsel Harriet Miers to answer questions about the political retribution firings of numerous United States Attorneys in the Justice Department. Even though Miers had left the Bush administration and was a private citizen, she said she was told by Bush that she could not testify before Congress. On what grounds? That the President had deciderered that all senior presidential staff have absolute immunity to refuse to testify before Congress -- forevah.
So Congress took Miers, Bush and the whole crooked crew to federal district court. Republican, Bush-appointed federal judge John Bates heard the case and bodyslammed Bush. Here are some quotes from Judge Bates' 93-page decision. [Note: In Bates' decision, "Executive" refers to Bush; "Committee" is the House Judiciary Committee.]
Judge Catches Bushies Telling Him Lies
"[T]he Executive takes the Committee to task for failing to utilize its inherent contempt authority. But there are serious problems presented by the prospect of inherent contempt, not the least of which is that the Executive is attempting to have it both ways on this point."
"At the very least, however, the Executive cannot simultaneously question the sufficiency and availability of an alternative remedy but nevertheless insist that the Committee must attempt to “exhaust” it before a civil cause of action is available."
The Court is the Deciderer
"Put another way, the historical record dating back to United States v. Nixon suggests that the political branches have negotiated with one another against the backdrop of presumptive judicial review, mindful of that very real possibility. Thus, contrary to the Executive’s contention, declining to decide this case would be the action most likely to “alter” the accommodations process between the political branches."
"Significantly, immunity is strictly a legal issue, and it is the judiciary that must “say what the law is” with respect to that matter."
"Rather than running roughshod over separation of powers principles, the Court believes that entertaining this case will reinforce them. Two parties cannot negotiate in good faith when one side asserts legal privileges but insists that they cannot be tested in court in the traditional manner. That is true whether the negotiating partners are private firms or the political branches of the federal government."
Judge finds Bushies "Odd" and Hard to Understand
"The notion that the Framers contemplated that Congress would be required to shut down the operations of government before an Article III court could exercise its traditional role of resolving legal disputes is an odd one."*
"The Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch."
*This is in response to a fascinating Gingrichian/Norquistian claim by the Bushies that if Congress is upset that Miers or Rove won't respond to a subpoena, Congress can always shut down the government. At least they are predictable.
No Such Thing As Absolute Immunity
"The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides."
"The derivative, “alter ego” immunity that the Executive requests here due to Ms.Miers’s and Mr. Bolten’s close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here."
"Similarly, if 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."
The Court Can Hear the Case
"The mere fact that this case involves a dispute between the political branches -- or that such disputes are normally settled through negotiation and accommodation -- is not sufficient to render the Committee’s right non-judicially remedial. That argument is foreclosed by precedent dating back to United States v. Nixon including case law involving subpoena disputes between the two political branches. The Court therefore rejects the Executive’s argument that the DJA does not permit the Committee to have its day in court."
The Power of Congressional Investigation is also a Right
"Article I, the Committee asserts, provides Congress with an implied right to investigate in furtherance of its legislative function. That right has been recognized by the Supreme Court, which has also held that it carries with it a necessary corollary that Congress may rely upon compulsory process to enforce its investigative authority."
"The exercise of Congress’s investigative “power,” which the Executive concedes that Congress has, creates rights. For instance, by utilizing its power to issue subpoenas and proceed with an investigation via compulsory process, Congress creates a legal right to the responsive information that those subpoenas will yield. To hold that Congress’s ability to enforce its subpoenas in federal court turns on whether its investigative function and accompanying authority to utilize subpoenas are properly labeled as “powers” or “rights” would elevate form over substance. The Court declines to do so. [Footnote: Not all rights or privileges are express in the Constitution. Of note here, the Constitution makes no reference to executive privilege or absolute immunity either.]"
Like Duhh ... the Judiciary Decides What the Constitution Means
"It is the judiciary, rather than Congress, that is traditionally regarded as the arbiter of constitutional rights and it is self-evident why courts do not look to congressional intent when construing the Constitution."
Cheers.