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As noted by the AP, and more importantly, by diarist hcc in VA, the court hearing the case filed by the House Judiciary Committee seeking enforcement of its subpoenas against Harriet Miers and Josh Bolten has ruled in favor of the committee. Miers and Bolten must appear, and must produce the documents sought and/or privilege logs describing the documents and any claims of privilege for them if they continue to withhold them.

Coming from a very conservative judge who has amassed a rather remarkable track record of deciding in favor of executive power and government secrecy, this is something of a pleasant surprise, although this is certainly the way we ought to have expected the law to be interpreted in less contentious times.

What's next?

Well, the option to appeal is still open. And that would certainly help run out the clock, which might be what the "administration" is after. And of course, their prior actions have given us cause to ask very basic questions about the enforcement of judicial decisions that used to be taken for granted. That is, although Judge Bates agrees that Miers and Bolten have no valid claims of privilege that would make them immune from subpoena, there's still the question of how to physically force them to appear if they simply continue to insist that they will not. Under ordinary circumstances (and this ruling, should it hold up, certainly gives us reason to believe we're moving closer to our old understanding of what ordinary circumstances are), enforcement could be had through a court order enforcing its decision, meaning that federal officers could compel appearance in compliance with the subpoenas. Those federal officers, of course, are actually part of the "unitary executive," and depending on just how crazy the upper echelons of this "administration" are, you could possibly see some... let's say... difference of opinion... about whose instructions ought to be followed in any enforcement action -- the court's, or the boss's.

Back here on Earth, though, the ruling(which I haven't had the chance to read through yet) will surely put the House, the Judiciary Committee and all other committees with pending subpoenas (or subpoenas awaiting action) on firmer ground if they encounter continued resistance. With Article III now on record as agreeing with Article I that Article II is in the wrong here, public opinion about more aggressive enforcement of Congressional subpoenas might take on a very different color. If a federal judge orders White House compliance and the "administration" continues to resist, the threat of inherent contempt might possibly seem a little less out of left field, and begin to look a little more like the Congress putting its foot down at long last to stop a White House that's running wild.

One final note from page one of the opinion:

The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process.

I note simply (again, before reading the opinion) that it has been Karl Rove's contention in connection with the subpoenas he's defied that he has "absolute immunity" from Congressional process. While Miers and Bolten have mostly framed their defiance in terms of "executive privilege" of varying stripes, Rove has made his case (such as it is) on the basis of some new invention he styles "absolute immunity." I'm hopeful that this decision will short-circuit his claims as thorough as it appears to have short-circuited those of Miers and Bolten.

Oh, and one more thing: Congress goes into recess at the end of this week, not to return until September, and after which the House aims to adjourn their session on September 26th. That effectively leaves three weeks of active session to actually do something with this ruling.

Originally posted to Daily Kos on Thu Jul 31, 2008 at 09:10 AM PDT.

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Comment Preferences

  •  tick, tock (10+ / 0-)

    running out the clock is right.

    I won't be holding my breath

    "Politics didn't lead me to working people. Working people led me to politics." Barack Obama

    by MLDB on Thu Jul 31, 2008 at 09:12:24 AM PDT

  •  Rove would also have "absolute immunity" (10+ / 0-)

    from judicial subpoenas as well, maybe even all civil and criminal liability, if his theory (which is, apparently, "I am Joseph Stalin")is correct.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Thu Jul 31, 2008 at 09:12:49 AM PDT

    •  Or if he relocates to a ranch in Paraguay (6+ / 0-)

      which has no extradition treaty with the US.

    •  The Will of the King is Law (3+ / 0-)

      Didn't we fight a war to rid ourselves of claims like Rove's?

      •  Under this decision Rove must show up. (3+ / 0-)
        Recommended by:
        Cartoon Peril, Eyes Wide Open, eco d

        I read the whole 93 pages plus footnotes.  The Bushies must be kicking themselves if this is what a Dubya appointee will do to them.  Rove stands with Miers as a former advisor, who not only does not have absolute immunity, he does not necessarily have qualified immunity, at least on this subject, as well as Siegelman and others which are neither matters of foreign affairs or national security.

        And the joy here is that it seems it may now be necessary for Bushies who want to hide behind national security or foreign affairs to demonstrate that that is in fact what they are hiding behind. Not just to assert that they are.

        This is gonna be good before it's over.  

        •  All it said was they had to show, did not (0+ / 0-)

          address privilege issues.  So we are at least 182 years away from finding out anything.

          You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

          by Cartoon Peril on Thu Jul 31, 2008 at 03:16:20 PM PDT

          [ Parent ]

        •  Time is short. They can run out the clock. (0+ / 0-)

          That is why I fear even an Obama administration's desire to just "let bygones be bygones" and sweep this crap under a rug to fester until another Bush like "Executive" comes along.

          That would be compounding this disaster and really, when one thinks of the long term consequences of not curing the disease, that administration becoming accomplices after the fact. It will reemerge, probably in a more virulent and fatal form.

          The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

          by pelagicray on Fri Aug 01, 2008 at 09:44:29 AM PDT

          [ Parent ]

  •  Good news! (9+ / 0-)

    On to reestablishing the principle of checks and balances!

    I could have been a soldier... I had got part of it learned; I knew more about retreating than the man that invented retreating. --Mark Twain

    by NogodsnomastersMary on Thu Jul 31, 2008 at 09:13:00 AM PDT

  •  They'd better set it up hyper-fast. (5+ / 0-)

    I mean within 5 days.


  •  The Upper Echelon IS crazy (7+ / 0-)

    Yet so many here seem to push the idea that they're just like you and me.

    No, the upper echelon of this administration IS crazy.

    Criminally insane war pigs, for a fact.

    Capable of everything, and more.

    "Only the PTA? You know what the PTA stands for? Three things I respect and fear: Parents, Teachers, and Associations." [Rob Petrie]

    by eroded47095 on Thu Jul 31, 2008 at 09:13:28 AM PDT

  •  Congress can send a sternly worded email (6+ / 0-)

    while they're on recess.

  •  No Time, Game Over (5+ / 0-)

    Not that it was going to be played anyway, there's nobody under this system of government obligated to enforce the rulings.

    "Obligated" meaning meaningfully checked against misbehavior. This system has far more balances than checks against abuse.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jul 31, 2008 at 09:14:07 AM PDT

    •  I DON'T agree. (5+ / 0-)

      The system is not broken, it is the will of, this case, Congress, to abide by the system (to do their sworn duty to uphold the Constitution).

      This isn't to say that we don't have broken systems in this country, and many.

      It is just clear to me that Congress is shirking their duty and to that end hiding behind these meaningless avenues that they have so far taken.  This lacks any definition of integrity.

      •  Any system requires tending and maintenance, (0+ / 0-)

        otherwise it will cease to work as designed. That isn't a "system failure" beyond the fact that the maintainers are an absolutely essential part of the system.

        In that sense the system has failed. "We the people" who are the maintainers of last resort have failed in our system role. We've grown fat, lazy, relatively ignorant and focused on pleasure, entertainment and consumption. The designers knew of such cases I'm sure, though in such revolutionary times they may have thought that illness over. They failed to find a systematic means of avoiding that systems failure.

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Fri Aug 01, 2008 at 09:50:04 AM PDT

        [ Parent ]

  •  Somebody in McCain's reporter detail (8+ / 0-)

    needs to ask his opinion of the ruling.  I expect to hear him flip-flop within two or three sentences.

    whenever i have nothing particular to say i find myself always always plunging into cosmic philosophy or something -- archy (Don Marquis)

    by mspicata on Thu Jul 31, 2008 at 09:14:58 AM PDT

  •  I've got a few excerpts (15+ / 0-)

    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.

    [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. To begin with, prosecution pursuant to inherent contempt is a method of "inflicting punishment on an individual who failed" to comply with a subpoena. See Olson OLC Opinion at 137. As OLC has recognized, a civil action, by contrast, is directed towards "obtaining any unprivileged documents necessary to assist [Congress’s] lawmaking function." Id. Put another way, the two remedies serve different purposes, although it is true that threatening prosecution under inherent contempt may lead to the production of documents. But unlike a civil action for subpoena enforcement, that is not the primary goal of inherent contempt.

    Second, imprisoning current (and even former) senior presidential advisors and prosecuting them before the House would only exacerbate the acrimony between the two branches and would present a grave risk of precipitating a constitutional crisis. Indeed, one can easily imagine a stand-off between the Sergeant-at-Arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him. See Cooper OLC Opinion at 86 ("[I]t seems most unlikely that Congress could dispatch the Sergeant at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege."). Such unseemly, provocative clashes should be avoided, and there is no need to run the risk of such mischief when a civil action can resolve the same issues in an orderly fashion. Third, even if the Committee did exercise inherent contempt, the disputed issue would in all likelihood end up before this Court, just by a different vehicle -- a writ of habeas corpus brought by Ms. Miers and Mr. Bolten. In either event there would be judicial resolution of the underlying issue.

    Indeed this administration, along with previous executive administrations, has observed that inherent contempt is not available for use against senior executive branch officials who claim executive privilege. In this very case, the executive has questioned "whether [inherent contempt] would even countenance the arrest of the President or his closest aides for refusing to testify or provide privileged documents . . . at the President’s direction." See Defs.’ Reply at 22. The Executive has described that possibility as a "dubious proposition." Id. Previous administrations have gone even further. The Olson OLC Opinion explained that "the same reasoning that suggests that the [criminal contempt] statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well." See Olson OLC Opinion at 140 n. 42. The Cooper OLC Opinion concurred: the inherent contempt alternative "may well be foreclosed by advice previously rendered by this Office." See Cooper OLC Opinion at 83. Thus, there are strong reasons to doubt the viability of Congress’s inherent contempt authority vis-a-vis senior executive officials. To be sure, the executive branch’s opinion is not dispositive on this question, and the Court need not decide the issue. 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.

    •  God love him. (4+ / 0-)

      That's an actual logical exegesis of the difficult nature of using inherent contempt.  

      Didn't he get the Franklins in his Christmas stocking?

      whenever i have nothing particular to say i find myself always always plunging into cosmic philosophy or something -- archy (Don Marquis)

      by mspicata on Thu Jul 31, 2008 at 09:17:43 AM PDT

      [ Parent ]

    •  Confrontation (4+ / 0-)

      Indeed, one can easily imagine a stand-off between the Sergeant-at-Arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him.

      This is what I was mentioning earlier. You could have a standoff between the Secret Service and the Sergeant at Arms. Congress needs to be willing to cut off funds if the Executive doesn't comply.

    •  Now, That's Irony, For You (1+ / 0-)
      Recommended by:
      Mom to Miss M

      Third, even if the Committee did exercise inherent contempt, the disputed issue would in all likelihood end up before this Court, just by a different vehicle -- a writ of habeas corpus brought by Ms. Miers and Mr. Bolten.

      Why should Congress observe any writ of habeas corpus? I thought they'd already decided that habeas corpus was a thing of the past!

    •  Providing Cover for the Administration (2+ / 0-)
      Recommended by:
      mspicata, Eyes Wide Open

      This would seem to provide cover for the Administration in case they tough it out. If they refuse to go along, they can fall back on this as an opinion that inherent contempt cannot be used.

      Indeed this administration, along with previous executive administrations, has observed that inherent contempt is not available for use against senior executive branch officials who claim executive privilege.

      In other words, the executive is going to argue that they don't have to go should Congress send the Sergeant at Arms over to get them. They will argue that Congress has no more power to do this than they have to protect their papers and themselves--that it's a push. This isn't strictly true, since Congress directly represents the will of the American people and it is first among equals on that score. (That's what I'd argue, just based on the Constitution.) But in point of fact, it would be hard to get the executive to budge on this, and they have the bigger law enforcement staff to back them up.

      The judge allows some wiggle room:

      To be sure, the executive branch’s opinion is not dispositive on this question, and the Court need not decide the issue.

      But the tone is that the burden would be on Congress to show why they get to use inherent contempt. I think that's favorable to the administration.

    •  We've been IN a Constitutional crisis (3+ / 0-)

      since the 2000 "election". We need to resolve it by restoring the rule of law. Now.

      When a government violates the unalienable rights of the people, it loses its legitimacy.

      by Rayk on Thu Jul 31, 2008 at 10:00:10 AM PDT

      [ Parent ]

    •  Too bad (0+ / 0-)

      Someone should have tucked into the Habeus Corpus bill a provision that says Habeus Corpus no longer applies in cases of inherent contempt either.

      After all, as a co-equal branch of Government, Congress should have the same power to jail enemies of the state indefinitely and without having to grant habeus corpus rights.

  •  Can they cram this in? (2+ / 0-)
    Recommended by:
    greenearth, Batensmack

    Is there enough time for them to do anything with this little gift?  I want desperately for Congress to be able to get usable testimony against this maladministration...

    Our country can survive war, disease, and poverty... what it cannot do without is justice.

    by mommyof3 on Thu Jul 31, 2008 at 09:15:54 AM PDT

  •  Future DoJ (2+ / 0-)
    Recommended by:
    greenearth, Randall Sherman

    The present DoJ might not enforce that order, but a future DoJ is more likely to.
    The RWNM will claim that it's old news that has been thoroughly thrashed out before -- I can remember RMN complaining that the Watergate investigation had gone on too long, as if he wasn't stlling every step of the way -- but the decision will make that harder to argue.

    "I'm not opposed to all wars; I'm opposed to dumb wars." -- Obama in 2002

    by Frank Palmer on Thu Jul 31, 2008 at 09:16:24 AM PDT

  •  Rove's contention harks back to the concept (9+ / 0-)

    of "The King can do no wrong" and by extension neither can his agents. In the bad old days, even if you could prove a government agency were willfully and even maliciously negligent, you had no recourse because historically, the king is the ultimate or last appeal and how could you punish or bring suit against the ultimate arbiter.

    However, times have changed and we are no longer under a monarchy. However it appears Karl, having finished shredding the Constitution, has decided to start on the Magna Carta next.  

    •  Memories of Nixon (5+ / 0-)

      Nixon had the same view of executive immunity, essentially stating that "if the President does it, it is lawful"-- and we all know how that went.  Consider the consequences of anyone having "absolute immunity" in government office.  We would be under a dictatorship, or have we been for seven years?

      Just because you're paranoid doesn't mean someone isn't watching you.

      by 4CasandChlo on Thu Jul 31, 2008 at 09:21:27 AM PDT

      [ Parent ]

      •  Yes. And Cheney (3+ / 0-)

        honed his wrongheaded ideas about the "unitary executive" under that vile administration.

        All the more reason to throw as many of these crooks in jail as possible.

        It's a deterrent.

        If we continue to accumulate only power and not wisdom, we will surely destroy ourselves. -Carl Sagan

        by LightningMan on Thu Jul 31, 2008 at 09:24:52 AM PDT

        [ Parent ]

        •  I'd pay $3.85gal to drive down from PA (0+ / 0-)

          if I could watch the 'perp march':  Rove, Bolton, Meirs...anyone else!  
          My husband always calls me a 'dreamer'...none of this will ever happen.  Well, if I cant have it, I might as well 'not have it'  ALL.
          How about members of CODE PINK making a citizens arrest?  (Can you hear Gomer Pyle in the background yelling Citizens Arrest!  Citizens Arrest!)

          Oh well...I can dream cant I?

          Where people fear the government there is tyrany: "Where the government fears the people, you have liberty." Thomas Jefferson

          by ROADRUNNER DEM on Thu Jul 31, 2008 at 06:56:09 PM PDT

          [ Parent ]

      •  Nixon was nothing (3+ / 0-)

        Bush makes Nixon look like a saint.

        "Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we." GWB

        by thefretgenie on Thu Jul 31, 2008 at 09:49:44 AM PDT

        [ Parent ]

    •  I will be looking forward (2+ / 0-)
      Recommended by:
      greenearth, Randall Sherman

      to the description of his official White House duties. I would like to know the scope of his conversations with The Barnacle, who sometimes is not part of the Executive and sometimes is, and Mr. President on these matters.

      After the previous rulings from this particular judge I did not expect this.

      Remember Goodling testified with immunity and that is how North's felony convictions was evently overturned. I love it when someone asks him "Did you ever at any time stand convicted of a felony" because the answer to this has to be "Yes."

      Pray for the dead and fight like hell for the living~~Mother Jones

      by ttmiskovsky on Thu Jul 31, 2008 at 09:40:11 AM PDT

      [ Parent ]

  •  This is a good start (10+ / 0-)

    but I doubt they will comply anyway.  I'm reading The Dark Side, by Jane Mayer, and it is alarmingly clear from this book that those holding the reins in this administration, most notably Cheney and his legal viper, Addington, have no room in their philosophies for anything as quaint as the constitution.  Their withering scorn at Congress as an institution, especially in times of war, leave no question that they believe the administration is above the law in every instance, and that Congress is completely dispensable.  It becomes, therefore, a contest of wills, and this Congress hasn't shown sufficient will to stand up to these bullies.
    Addington carries a copy of the constitution in his pocket at all times (it begs the question as to why, since his prime goal seems to be to discount it), and he feels he has legal answers for every instance where the power of the presidency  (including the president's advisors) is called to account.

    Here's hoping this time is different.

  •  Magically! (1+ / 0-)
    Recommended by:

    Looks like John Bates' insidious assignment stealing has turned towards purposes more subtle than we can know...

    Or maybe he's just a judge, and the Plame, energy task force lawsuits, and wrong-bill lawsuits had serious legal defects. I have to admit to being a little tired of seeing people evaluate judges' behavior by the same standards they use to evaluate politicians' behavior. Results are not the best way to judge the outcome of a judicial proceeding.

    •  Maybe. (1+ / 0-)
      Recommended by:

      Of course, you're just reacting to something you "magically" divined from insinuations I explained to you I didn't make.

      But why take yes for an answer when you can carry this sort of petty confusion around with you as an excuse to comment?

      •  You didn't make those insinuations? (1+ / 0-)
        Recommended by:

        It's arguable that you didn't make them originally, but then you came back with this:

        After all, it's merely an assumption that the assignment procedures haven't been tampered with, isn't it?

        Now tell me, how is any reasonable person supposed to take that, if not as an insinuation that the assignment procedures have in fact been tampered with?

        But that's just a sideshow. The point I'm really trying to make, the point you seem to be reluctant to engage with, is that a record of reaching results adverse to our side does not mean the judge has a conservative bias. It can, and in the three cases most often brought up with reference to this judge, does, mean that the lawsuits themselves had serious legal problems, and that no impartial judge would have reached a different result.

        But until you stop evaluating judges as if they're political actors who can reach whatever result they want to, you're going to have a difficult time explaining apparent "reversals" like this one.

        •  I told you flat out what I meant. (2+ / 0-)
          Recommended by:
          hcc in VA, greenearth

          And then someone basically brought up the point that anything was possible, and indeed it is.

          Good thing we have judicial truth cops like you around to prevent anyone from wondering what might and might not be possible, and convert such musings into positive statements of fact.

          I'm sure all of the cases did have significant problems, which is why I -- and follow me here -- never positively and unequivocally stated that there was more to it than the remarkable coincidence of having heard some rather highly charged and high profile cases.

          Feel free to continue splitting hairs to prove to the world once and for all that you've discovered the Grand Unifying Theory of Everything, though.

          I told you what I meant, am happy to concede all your points about the cases and the probable integrity of the assignment system, but you've just got to keep going and going and going.

          Whoop-de-doo. Someone is talking to you about a flyspeck of a parsing issue. Yay.

        •  How nice of you to think all judges are objective (0+ / 0-)

          you ARE kidding yourself if that's what you think.  

          We Changed The Course! Now we must hold their feet to the fire.

          by hcc in VA on Thu Jul 31, 2008 at 09:43:34 AM PDT

          [ Parent ]

          •  Objectivity (0+ / 0-)

            Is impossible to bring to every aspect of judging. Too many decisions judges are made are subjective, by definition. The interpretation of ambiguous statutory or constitutional terms, the construction of opaque appellate decisions--these are tasks which inevitably bring the judge's own values, beliefs, and methods of interpretation into play.

            However, non-objective isn't the same thing as partisan. What we expect of our judges is that they make a good-faith effort to rule on the basis of what the law requires. And the mere fact that a court may reach a result we disagree with is not evidence that they have failed in that task, and have become partisan or non-judicial in character. The only way to demonstrate when a judge has forsaken his/her judicial role (which does happen occasionally) is to offer a reasoned critique of his/her opinion or decision in legal terms, showing where the decision strays from clearly established law into the realm of political decisionmaking.

            In the specific case of Bates and these prior lawsuits, few have made the effort to evaluate his decisions in legal terms. Instead, most observers are evaluating him by essentially political criteria, saying "He ruled this way in three cases, so he's in the tank for the Bush administration." But the mere fact of the result doesn't establish anything of the kind, because it ignores the possibility that he followed the law, which happened to favor the Bush administration position in those specific instances.

            •  What about expectations? Do you think (1+ / 0-)
              Recommended by:
              ROADRUNNER DEM

              that those that appoint certain judges, who happen also to be in the Federalist Society, expect certain "subjectivity?"  Why is it that the Supreme Court has also been characterized in terms of the political leanings of their judges?  And what about the 5-4 decision that bypassed the traditional Republican mantra of the overriding importance of States' Rights (aka how Florida counts their votes) and instead overturned an election and presented it to the Loser?  

              Now why don't you explain to us why we should consider Clarence Thomas as fitting in to your description of how judges reach their decisions?  We await with baited breath.

              We Changed The Course! Now we must hold their feet to the fire.

              by hcc in VA on Thu Jul 31, 2008 at 10:33:13 AM PDT

              [ Parent ]

              •  Clearly (2+ / 0-)
                Recommended by:
                hcc in VA, eco d

                The subjective factors that are a part of a judge's makeup are the most important criteria the White House uses to select judicial nominees. They're successful sometimes, and sometimes life tenure coupled with the enormous responsibility placed upon federal judges to make decisions that affect people's lives and change the meaning of the law leads a judge down a different path. That's the appointments game, and Democrats play it the same as Republicans do (although Clinton didn't play it particularly well). It's not a perfect system for achieving true judicial independence and impartiality, but it's the best we've got.

                The Supreme Court is characterized in terms of the political leanings of the Justices because that's the way political reporters and observers can best explain and interpret the outcomes that the Court creates. And despite (or perhaps because of) the fact that the approach is tailored towards an unrealistically narrow view of what the Court does, it frequently gets stood on its head when Republican appointees like Anthony Kennedy vote to uphold gay rights or bar the death penalty for specific classes of convicted criminals. (This is to say nothing of John Paul Stevens and David Souter, both appointed by Republican Presidents and both reliably liberal.)  The party ID model works in the aggregate, but we don't generally focus on the aggregate of Supreme Court decisions, we focus on high-profile, landmark cases. There, the party ID model breaks down surprisingly frequently, for the simple reason that judging isn't politics, and that judicial independence can free judges and Justices to render decisions in accordance with law and principle in a way that they would be constrained from doing if they were political officeholders.

                Bush v. Gore was a horrendous decision which made a mockery out of judicial impartiality. Obviously, its practical negative consequences continue to this day, as do its implications for public confidence in the integrity of the judiciary. But to my mind, it does not prove that all decisions are similarly partisan. It reflects an aberration, a situation in which the Justices chose to set aside their own principles to reach a preferred result. That such a serious transgression occurred once is strongly suggestive of the possibility that it could occur again, but it is not, standing alone, proof that it has occurred again. I think the Supreme Court's actions during the Bush administration have proven that the Justices aren't in the tank for the President. They have taken several opportunities to defy him and his policies on constitutional grounds. When you have examples of partisan partiality and principled judicial decisionmaking, the logical approach isn't to assume that all of the decisions with outcomes you disagree with are partisan, and that all the decisions with outcomes you agree with are principled and legally correct. Rather, the logical approach is to carefully scrutinize each decision in legal terms, measuring it for adherence to norms of judicial decisionmaking and comportment with constitutional text, history, and precedents.

                By those standards, I do not believe one can find serious fault with the decisions rendered by Judge Bates in any of the high profile cases that have come before him. Certainly you can make strong legal arguments that some of these cases ought to have come out the other way (most especially with regard to the energy task force lawsuit), but I don't think you'll find, in reading his opinions, that he departs from established precedent in arriving at his rulings. Indeed, it is difficult to imagine that any judge would have ruled differently than he did on the question of whether individual legislators had standing to challenge President Bush's withdrawal from the Anti-Ballistic Missile Treaty, for reasons that are actually quite clearly articulated in Bates' opinion today in the contempt case. Bates is a conservative judge, from what I have seen, but he is not a partisan judge, nor has he forsaken his duty to render judgment in accordance with legal, rather than political, principles.

                Clarence Thomas is an oddball. Setting aside issues of personal character, accounts from within the Court certainly suggest that he is not as disengaged from the Court's business as his customary silence during oral arguments would suggest. And he does follow principle in most of the cases he participates in, albeit very radical principles. I frankly disagree with many of his positions and do not find them well-supported in constitutional text or judicial precedent, but as an iconoclastic originalist, Thomas has the advantage of not needing to defer to precedent in order to maintain consistency in his judicial philosophy. I don't see him as partisan so much as unswervingly ideological, and not particularly practical. For a few examples of what I'm talking about, you might consider his opinion in the California medical marijuana case a few years ago, Gonzales v. Raich, in which he would have upheld California's compassionate use law on federalism grounds. He also frequently joins with the most liberal Justices in freedom of speech cases, over the dissents of Justices like Rehnquist and Roberts, who strike me as more partisan and less ideological than Scalia and Thomas.

                •  Rec'd for the great effort you have made (0+ / 0-)

                  to respond to my questions, which I appreciate.  I take it you are either a) a judge, b)a law clerk, c)a lawyer who has argued before one or more of the aforementioned judges, or d)an unemployed Kossack who likes to read books about trials.

                  We Changed The Course! Now we must hold their feet to the fire.

                  by hcc in VA on Thu Jul 31, 2008 at 12:21:29 PM PDT

                  [ Parent ]

            •  some judges are just plain evil, too! (0+ / 0-)

              Cases in point:
                A judge in local union case/1975 which affected me & many others...after judge died, his estate contained over 600,000 shares of 'company stock'.  Coincidence?

                Also, dif. judge, in custody suit involving my daughter, my 3 grandkids, & loser-ex:  Judge ruled in 'his favor'....later turned out to be good buddies with a 2nd judge whose daughter married the 'brother-in-law' of "loser-ex".  (follow?)  

              Where people fear the government there is tyrany: "Where the government fears the people, you have liberty." Thomas Jefferson

              by ROADRUNNER DEM on Thu Jul 31, 2008 at 07:08:45 PM PDT

              [ Parent ]

  •  FYI O/t but related (4+ / 0-)

    To another Republican scandal, from an Oregonian editorial in today's paper on Ted "Tubes" Stevens:

    Oregonians are not unfamiliar with how this works. In an earlier era, long-serving Republican Mark Hatfield became a Senate powerhouse for this state, bringing home a good many federal dollars.

    But Hatfield managed to see the difference between public and private good. Stevens, by contrast, seems to have confused himself with the state he served, falling into the trap of believing that what was good for Ted Stevens was good for Alaska.

    He did, after all, accept the gifts from VECO. All he's denying is that he "knowingly" failed to report them.

    That's lame. When a U.S. senator accepts lavish gifts from a company that has business before Congress, it's a form of corruption. He's not formally accused of taking bribes, but what else was that new Land Rover?

    Stevens has rejected calls that he step down. Alaska voters this fall should give him a nudge.

    "Polls are like crack, political activists know they're bad for them but they read them anyways."-Unknown

    by skywaker9 on Thu Jul 31, 2008 at 09:17:18 AM PDT

  •  Appointment of Federal Judges (5+ / 0-)

    Is why you shouldn't even THINK of voting for the ratbastard John McCain, Harriet Christian.

    "Only the PTA? You know what the PTA stands for? Three things I respect and fear: Parents, Teachers, and Associations." [Rob Petrie]

    by eroded47095 on Thu Jul 31, 2008 at 09:17:24 AM PDT

  •  On Timing (10+ / 0-)

    Writes Judge Bates:

    Still, the timing of this dispute gives the Court some pause. The 110th Congress expires on January 3, 2009. Unlike the Senate, the House is not a continuing body. [] Thus, this House ends on January 3, 2009. Significantly, the subpoenas issued by this House will also expire on that date. Id. Moreover, a new executive administration will take office in January 2009 following the presidential elections that will be held in November.

    There is, therefore, the question of mootness possibly looming on the horizon that threatens both parties here. 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. 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. [] 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. As was the case in AT&T I, in which only a few days remained before the new Congress, this "case is not now technically moot." 551 F.3d at 390. Indeed, unlike in AT&T I, this case is not about to become moot either; there are over five months of live controversy remaining. Furthermore, this mootness concern is likely to be present in nearly every controversy of this nature. Because the Congress expires every two years, and a subpoena issued by the House remains valid only for the duration of that Congress, it would be difficult for any House subpoena dispute to fit into that two-year window once the time for appeal is factored into the equation. The process contemplates a long period of negotiation with resort to the judiciary, if at all, only in the case of a legitimate impasse. The combination of the congressional process and litigation time including appeal) means that every subpoena dispute of this nature would likely run up against the two-year window. That may present a problem that is capable of repetition yet evading review, a well-recognized exception to mootness. But in any event, it is not necessary to decide that question now because this case is not presently moot and, significantly, neither side has asked the Court to stay its hand due to mootness considerations.

  •  Three weeks??? (2+ / 0-)
    Recommended by:
    Cathy Willey, greenearth

    Will there be a chance to pick this back up when the new congress convenes???

    What new evil is afoot in the kingdom of the webs? And how may it be used against the Thundercats!!! --- Evil Lord Mum-Ra

    by Batensmack on Thu Jul 31, 2008 at 09:18:10 AM PDT

  •  The unitary executive (2+ / 0-)
    Recommended by:
    Liberal Thinking, armadillo

    Just became a eunuchary executive! :)

    George Bush and John McCain don't have a strategy for success in Iraq - they have a strategy for staying in Iraq. - Barack Obama.

    by Bobs Telecaster on Thu Jul 31, 2008 at 09:18:25 AM PDT

  •  Good news, but nothing will come of it (0+ / 0-)

    Nothing ever does.

    Seems Bush runs the first true Teflon Administration.

    Still, anything positive is a plus, I guess. I've just learned not to get my hopes up too far.

    Gun control, separation of church and state, women's reproductive rights and the 4th Amendment do matter.

    by sloopydrew on Thu Jul 31, 2008 at 09:18:28 AM PDT

  •  its only round 1 (4+ / 0-)

    They won't be able to get them to testify in time for the election, but I have a feeling that this time next year we will be watching televised hearings.  

    I wonder if Harriet and Michael thought they would be able to hold out forever.  Or I wonder if someone offered them a pardon, only to get double-crossed.  They will eventually have to answer the questions and maybe go to jail, or end up in jail for not answering the questions.  

    •  Not so fast... (1+ / 0-)
      Recommended by:
      Randall Sherman

      In an election year, if we can assemble a groundswell of support for HJC's move to have them appear and testify then maybe we can score a double double.  Horrible testimony against the Bushies and "score one for the good guys" votes (i.e. a reason to vote for democrats up for re-election who jump in to help)

      What new evil is afoot in the kingdom of the webs? And how may it be used against the Thundercats!!! --- Evil Lord Mum-Ra

      by Batensmack on Thu Jul 31, 2008 at 09:25:08 AM PDT

      [ Parent ]

  •  For a Judge Bates to rule the administration's (2+ / 0-)
    Recommended by:
    Cathy Willey, EvasDad

    position to be without legal basis can't be very far from other judges (like judges of the D.C. Circuit on appeal) finding it frivolous and sanctionable.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Jul 31, 2008 at 09:18:33 AM PDT

    •  That depends on who is on the bench, I guess. (0+ / 0-)

      It's no secret that they put political allies anywhere they could to act as barricades for this very reason.  Our only hope is that the climate has shifted back towards reality enough so that an outrageous ruling would not be so easily accepted.

      •  Legal frivolity is not like yours or mine. (0+ / 0-)

        To be legally frivolous, the position taken must not only have no basis whatever in law or fact, but must also be something other than a legitimate argument for a change in the law, and/or undertaken for an improper purpose entirely, such as to injure the other side in the action in an improper way.

        In this decision, the Executive made arguments based on case law, where there was any, and discretion arguments, which are almost always fact driven. Probably not frivolous legally.

  •  The Constitution Lives! (0+ / 0-)

    There is a Constitution Virginia!

    There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour. Fredrick Douglas

    by angry liberaltarian on Thu Jul 31, 2008 at 09:18:34 AM PDT

  •  And Jailing Them if They Defy the Order to Appear (3+ / 0-)

    Would be based on the judiciary's inherent power of contempt.

    Appealing only works to run out the clock if the District Court judge agrees to stay his order until their appeal is heard or if the D.C. Circuit stays the order pending appeal.

    Otherwise, the order stands and disobeying it, even if a notice of appeal has been filed, is grounds for contempt and being jailed.  Just like Susan MacDougall.

    This aggression will not stand, man.

    by kaleidescope on Thu Jul 31, 2008 at 09:18:38 AM PDT

  •  Last time (4+ / 0-)

    This is going off on a tangent, and I apologize for that.

    Last few times the Congress went on recess, Harry Reid called pro forma sessions to prevent Bush from making any recess appointments.  Are there plans for anything like taht this time around?

  •  Ummm... yay? (0+ / 0-)

    So now they go in front of Congress and swing their 'executive privelege' stick at all the questions they're asked, rather than the subpoena itself.

    Sadly, this buys us nothing.

    Corporate Dog

    Obama: $0; Shea-Porter: $25; ACLU: $25 (monthly)

    by Corporate Dog on Thu Jul 31, 2008 at 09:19:42 AM PDT

  •  Forget it (3+ / 0-)

    Nancy Pelosi will use every trick in her magic purse to prevent this from happening.
    We wouldn't want to look like we were on a witch hunt now, would we?

  •  If Mukasey still refuses to enforce-impeachment? (1+ / 0-)
    Recommended by:

    I'm sure our Nancy is right on top of it.  

    We Changed The Course! Now we must hold their feet to the fire.

    by hcc in VA on Thu Jul 31, 2008 at 09:21:13 AM PDT

  •  Bet Karl Rove's Noticing (4+ / 0-)
    Recommended by:
    hcc in VA, greenearth, armadillo, EvasDad

    it's getting a little warmer in the regions of his collar.

    They burn our children in their wars and grow rich beyond the dreams of avarice.

    by Limelite on Thu Jul 31, 2008 at 09:21:28 AM PDT

  •  not a goddam thing, that's what's gonna happen (2+ / 0-)
    Recommended by:
    hcc in VA, leonard145b

    doj and pelosi will do nothing.

    "The most common form of terrorism in the U.S.A. is that carried on by bulldozers and chain saws." Edward Abbey

    by timbuck on Thu Jul 31, 2008 at 09:22:17 AM PDT

  •  Means nothing ... (2+ / 0-)
    Recommended by:
    Cathy Willey, timbuck

    All I know is if the situation was reversed Rethugs would have put several dem WH personnel in prison by now ...

  •  This insane notion of "executive privilege" ... (8+ / 0-)

    ... over everything they do and Barack Obama is the "arrogant" one? It boggles me.

    "It does not require many words to speak the truth." -- Chief Joseph, native American leader (1840-1904)

    by highfive on Thu Jul 31, 2008 at 09:26:02 AM PDT

  •  Can Obama please speak out on this now and (3+ / 0-)
    Recommended by:
    lysias, greenearth, mommyof3

    take a very strong stand on it?  And he should challenge McSame to express his view.  

    We Changed The Course! Now we must hold their feet to the fire.

    by hcc in VA on Thu Jul 31, 2008 at 09:27:17 AM PDT

  •  Appeal is NOT an automatic STAY (5+ / 0-)
    Recommended by:
    Adam B, mcfly, hcc in VA, greenearth, JG in MD

    Federal Rule of Appellate Procedure 8 indicates that a STAY of a District Court ruling MUST be applied for and is not automatic.

    So the Executive taking an appeal does not necessarily mean a stay will be granted.  I do not know enough about the appeals court that has jurisdiction to guess how they will rule, but the District Court will likely not grant a stay for an appeal of its own decision.

    •  Good point - so Congress could re-iterate their (0+ / 0-)

      demand for Meirs and Bolton to appear immediately, no?  And arrest them if they don't.  After meeting Nancy at Netroots, I have full confidence she will pursue this vigorously.

      We Changed The Course! Now we must hold their feet to the fire.

      by hcc in VA on Thu Jul 31, 2008 at 09:32:49 AM PDT

      [ Parent ]

  •  There may yet be another diversion - (0+ / 0-)

    I thought I heard, whilst attempting to awaken, a news item saying that the ReThugs are threatening to withold passing a Continuuing Budget Resolution, and thus shut down the government, if we do not donate the offshore drilling permits that the poor (aka record profits for Exxon) oil companies.  That could be a major distraction, the good news being I would be out of work and have more time to post.

    We Changed The Course! Now we must hold their feet to the fire.

    by hcc in VA on Thu Jul 31, 2008 at 09:30:55 AM PDT

    •  I See You're in VA (0+ / 0-)

      Can't you just see the DC Metro area in another Gummint shutdown? How many have we had now, three or four, something like that?

      The thing is, we have to Make Sure that Everybody Knows this was the Rethugs' fault. Everybody, like, all over the world.

  •  Democrats are weak... (4+ / 0-)
    Recommended by:
    beemerr90s, hcc in VA, EvasDad, Batensmack

    because they proceed according to the rules and in a civilized manner.  Republicans are strong because they flaunt the rules and take advantage of the courtesy the Democrats show them.  This, of course, meshes nicely with the American Love of the Lawless West.  Of course it is wrong.  It is much harder to uphold your own standards in the face of cheaters and lairs - say like Bin Laden or Bush.  It is frustrating to watch as the bully slaps the bigger kid around the school yard - but you've got to give the bigger kids some credit for not crushing the pathetic annoyance outright, thus becoming as bad as the bully - metaphorically speaking.  (It would be nice if he would slap him just once, though...really hard.)

  •  Well, we're getting some good case law (0+ / 0-)

    to reign in a lawless presidency, but they'll appeal. Their claims are basically frivolous, but their point is just to ensure no high-up in the WH goes to jail.

    And with no use of inherent contempt, they'll get it.

    John McCain: The only mavericky straight-talker surrounded by corporate lobbyists

    by atrexler on Thu Jul 31, 2008 at 09:32:32 AM PDT

    •  Would It Be Possible (1+ / 0-)
      Recommended by:
      eco d

      theoretically, to hold the hearings before the appeal is filed and render the damned appeal moot instead of the case?

      Just theoretically, since it won't happen.

      Why the hell can't the House remain in session with some Congresscritters coming to town to hold hearings? They don't have to have a quorum on the floor, just a procedural right to do business.  Right?

  •  These Are Crazy People (2+ / 0-)
    Recommended by:
    The Termite, hcc in VA

    And, I wouldn't put it passed them to use the Secret Service to block any efforts by the Sergeant at Arms to arrest one of these people, if Congress goes down the inherent contempt route. Congress needs to be willing to cut off their supply of money if that happens.

  •  3 cheers for the rule of law! (1+ / 0-)
    Recommended by:

    "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

    by zdefender on Thu Jul 31, 2008 at 09:41:18 AM PDT

  •  pardons (0+ / 0-)

    Can't bushie just pardon/commute all of the above--and wail about lynch mob Dems?  All legal systems depend on good faith--from the jury, the cops, the judge, etc--and we now know that using "faith" is the basis of these crooks.

    •  Pardons don't protect the from subpoena (1+ / 0-)
      Recommended by:
      JG in MD

      even if the were pardoned they would still have to testify and could then be charged if they didn't appear or lied if they did appear and testified. They couldn't take the fifth either bacause they were pardoned. That is my understanding I certainly could be wrong. I'm no lawyer.

      Disabled Viet Vet ret. My snark is worse than my bite

      by eddieb061345 on Thu Jul 31, 2008 at 09:57:31 AM PDT

      [ Parent ]

    •  No Pardon Available (1+ / 0-)
      Recommended by:
      JG in MD

      The president can only pardon for offenses against the United States (i.e. criminal offenses).  Contempt of Court or Contempt of Congress cannot be pardoned.  Lots of case law on this point.  No pardon available in this situation.

      •  thanks (0+ / 0-)

        for the good news.  but can you be pardoned for perjury?  nixon was pardoned before criminal procedings--a pre pardon, if you will--can this happen here?

        •  I don't think you can pardon something (0+ / 0-)

          that hasn't happend yet!

          Disabled Viet Vet ret. My snark is worse than my bite

          by eddieb061345 on Thu Jul 31, 2008 at 10:19:31 AM PDT

          [ Parent ]

        •  Criminal Perjury can be pardoned (0+ / 0-)

          You raise an interesting point with this question.  If someone is formally indicted for perjury and charged (a case captioned United States v. ___) the President could pardon that person.  If the person commits perjury before the Congress they have the inherent power of contempt and perjury before congress is contempt of congress.  So a criminal prosecution may result in a pardon, but other sanctions are available.

          •  so (0+ / 0-)

            The smart thing for Rove would be to accept the subpoena, forget everything--before bushie departs.  If congress wanted to, could it ask federal marshalls to arrest him anywhere in the US? in Dubai, could he be extradited?

            •  addenda (0+ / 0-)

              I have a severe bias against the turd and want to see a video of him getting a splintered broomstick up his ass.  Actually, I would like the same for his bosses also.

            •  It is Bushie interest to testify before January (0+ / 0-)

              20, 2009, because a new Congress can issue a new subpoena after that, if he hasn't, and no pardon covers contempt and perjury not yet committed. The decision considers this specifically in its 'mootness' discussion.

              •  So they have an interesting dilemma (0+ / 0-)

                do they try to rush through this and testify, expecting that criminal charges would soon follow and therefore a pardon? It seems so, except that this would all happen in September and perhaps stretching into October, which would seem to be the stroke of death for a McCain campaign and probably result in several other close races tipping towards dems. Do the Bushies cover their own asses before their party's?

                The two most common elements in the universe are hydrogen and stupidity. - Harlan Ellison

                by eco d on Thu Jul 31, 2008 at 02:28:40 PM PDT

                [ Parent ]

  •  Sounds like (1+ / 0-)
    Recommended by:

    the right-wing judges are preparing for an Obama presidency, just in time to restrict Bush's runaway executive branch.

  •  All of this just to get to testimony like this: (5+ / 0-)

    I don't recall. I can't remember. That's privileged.

    Please don't tell me you feel sorry for Ben. Ben is a well cared for dalmatian and has not been harmed by my political views.

    by Bensdad on Thu Jul 31, 2008 at 09:44:49 AM PDT

  •  Remember when "law and order" was a supposedly (1+ / 0-)
    Recommended by:

    conservative mantra??  How times have changed.  Fascism tends to have that affect on governments though.

    We Changed The Course! Now we must hold their feet to the fire.

    by hcc in VA on Thu Jul 31, 2008 at 09:45:07 AM PDT

  •  The judge is looking at a Democratic President (6+ / 0-)

    and a Democratic Presidential administration come Jan 20, 2009, and does not want to extend that absolute right to a Democrat.

    I suspect this is the case of a conservative Bush-executive-privilege-loving judge looking through his own party bias lens now aghast at claims of executive privilege as a right to be claimed by the  (horrors!) other party, rather than a necessarily noble decision.

    But see, that's what 8 years of Bush has done to me, I've become such a cynic about conservative judges having little or no actual principled governor.

  •  Future timeline: (2+ / 0-)
    Recommended by:
    greenearth, JG in MD

    Miers and Bolten appeal.

    If they lose the appeal, they appear in front of Congress and plead the Fifth.

    They suffer no consequences.

    Call me cynical.

    There are rules, laws, and the rule of law. George W. Bush has disregarded all three.

    by geodemographics on Thu Jul 31, 2008 at 09:48:35 AM PDT

  •  Now Conyers has... (0+ / 0-)

    ...some more BS to put in his Sternly Worded Letters"

    If it's Twisted and Stable, it's Art; If it's Fair and Balanced, it's Diaper Chunks.

    by olo on Thu Jul 31, 2008 at 09:51:45 AM PDT

  •  Ho hum, another breakthrough (1+ / 0-)
    Recommended by:
    JG in MD

    I wish I thought this would actually result in any of these crooks having to testify. I further wish that even in the highly unlikely event that any of them do actually testify, that they will actually remember anything that happend during their time in office.
    To extend my wishes still further, into the realm of pure fantasy, I'd love to believe that if they gave truly damning testimony about the president and Veep, that anything other than a few seconds of mention on the headline news would result.
    What I truly expect is this; none of them will actually testify. If a miracle happens and they do testify they will say nothing more than "I can't recall."
    Regardless of what comes out of any testimony it is a fools game to think that anyone other than some low level pawns will ever face anything that even approaches justice.
    The Democrats have made it abundantly clear that they have no interest whatever in holding this administration accountable.
    Bush and most of his cronies are going to skate, we may not like it, but that's what's going to happen.

    •  Almost but Not Quite (0+ / 0-)

      Obama has left the door open by using the phrase "egregious offenses." Granted, torture would be the most egregious, but there's room for others as well.

      I have to cling to whatever slender reed I can.

  •  Perhaps the idea is avoid setting precedent: (1+ / 0-)
    Recommended by:

    surely the neocons are quaking in their boots at the thought of President Obama with the executive powers that W has persistently claimed.  If those powers were upheld by the Judicial branch at this point, they'll have a much more difficult time saying "we didn't mean it" in January.

    Never wear your best trousers when you go out to fight for freedom and truth. -- Henrik Ibsen

    by mik on Thu Jul 31, 2008 at 10:14:48 AM PDT

  •  Nothing going on here, move along (0+ / 0-)

    Do you really think anything will happen with the Caveman Pelosie running congress right now. Hears the Democrats motto: "It's so easy even the Democrats Can't do it"

    Disabled Viet Vet ret. My snark is worse than my bite

    by eddieb061345 on Thu Jul 31, 2008 at 10:16:44 AM PDT

  •  Public Opinon change, what is it NOW? (0+ / 0-)

    I haven't seen any polls on it. Please provide informational links.

    There's something attractive about invincible ignorance... for the first 5 seconds.

    by MNPundit on Thu Jul 31, 2008 at 10:19:27 AM PDT

  •  What is it again (1+ / 0-)
    Recommended by:

    that they are to testify about anyway?  At this point I've forgotten.

  •  I think you might see more and more (2+ / 0-)
    Recommended by:
    lysias, FishBiscuit

    of these rulings, striking against executive power, the closer we get to the end of Dubya's term., many initiated by conservatives. You can be sure that they will be seeking to gird themselves against a strong executive privilege in the Obama WH. Conservative proponents of an imperial presidency will no doubt change those "deeply seated convictions" when they are out of power.

  •  You still have to show up to claim (1+ / 0-)
    Recommended by:

    privilege. I never understood how even the Republican members of Congress would allow their oversight powers to be usurped so easily.

  •  Maybe what the Executive branch needs is for... (0+ / 0-)

    attorney general to be of a different party than the president. Keep 'em honest.

    License they mean, when they cry Liberty! - Milton

    by Rocco Gibralter on Thu Jul 31, 2008 at 11:08:19 AM PDT

  •  We all know what's going to happen (1+ / 0-)
    Recommended by:
    JG in MD

    They will file and appeal, and refuse to appear pending the appeal.

    Then, either after Obama wins or once its clear there will be a Democratic Administration, they will decide to appear (knowing that if they relent and appear, the Republicans will be able to say that Democrats have to appear before Congress just like the Republicans so graciously agreed to do).

    And when they do appear, they will lie.  Openly and blatantly.  They will claim memory loss and refuse to answer certain questions.  They will stonewall.  Mostly, though, they'll just lie.  And we'll learn nothing we don't already suspect, so the media will treat it like a win for the Adminstration and like old news.

    •  I Think So Too (0+ / 0-)

      You watch enough hearings, you see that

      1. Anybody can evade a question by talking around it, answering a question with a question, or stringing words together that make no sense.
      1. "I don't recall" can't be disputed. It's lame, but it works.
      1. The clock governs all hearings. Every single time a witness is asked a question, a l o n g answer will work in his/her favor no matter what's said.
      1. Witnesses are always aware of these three rules and use them relentlessly.
  •  Warning: SPOILER (1+ / 0-)
    Recommended by:

    Nothing will happen.

  •  Here's the key holding (2+ / 0-)
    Recommended by:
    lysias, eco d

    After 78 pages of detailed technical legal analysis on questions of standing and jurisdiction, the court's ruling on the merits could not be simpler or more straight-forward:

    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.

    "At least the war on the environment is going well."

    by RenMin on Thu Jul 31, 2008 at 01:51:43 PM PDT

    •  Sounds to me like Judge Bates is saying that (1+ / 0-)
      Recommended by:
      Eyes Wide Open

      in his opinion the government's arguments were legally frivolous.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Jul 31, 2008 at 02:53:23 PM PDT

      [ Parent ]

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