Friday, August 01, 2008

Not Above the Law

A federal judge appointed by Bush himself -- the same judge who was a member of the Star Whitewater team and who threw out Valerie Plame's case against Karl Rove, in case some wingnut charges "judicial activism!" -- smacks down his Administration's claim of absolute immunity from Congressional testimony as utter nonsense:

President Bush’s top advisers cannot ignore subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government.

“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here.
Pending a White House appeal, this means former White House counsel Harriet Miers and chief of staff Joshua Bolten, both already declared in contempt of Congress, can't just ignore the subpoenas; they will have to appear in person and produce all non-privileged documents required by said subpoenas regarding the U.S. Attorney firings scandal.

Same might apply to Bush's brain Karl Rove, who's so far refused to testify and who may also be held in contempt of Congress for his involvement in the prosecution of Democratic Alabama governor Don Siegelman .

Law professor and scholar Marty Lederman, who has read the 93-page opinion (pdf) writes [note: emphasis mine]:

It is an extraordinarily thorough, scholarly and thoughtful opinion -- surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration's principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter -- the notion that because the subject matter of the investigations is presidential removal of the U.S. Attorneys, Congress has no legitimate oversight function at all.
Read the rest of Marty's thorough analysis of the decision here, including the court's rejection of the Bush Administration's claim that Congress has no business inquiring into why the U.S. Attorneys were fired.

As unprecented as this decision is -- it's the first time the courts have agreed to enforce a Congressional subpoena -- it's only a partial win for Congress for three reasons:

1. The Bush Administration will surely appeal and drag their feet to run out the clock past the end of this Congressional session; this will render the subpoenas moot.

2. In spite of the judge's ruling, Attorney General Michael Mukasey may still block prosecution of White House aides who refuse to testify, in which case Congress may have to exercise its power of inherent contempt.

3. Even if Miers and Bolten show up in front of the Congressional Committee, regardless that it's voluntarily or via enforcement of Congress's inherent contempt power, they can still refuse to testify by citing executive privilege.

Since the validity of claiming executive privilege wasn't addressed by the judge's decision, the White House can continue to claim it and it's up to Congress to challenge it, leading to additional rounds of legal wrangling until someone blinks first.

Josh Patashnik wonders why Bush chose to play hardball about this. The answer is simple: it's a high stakes game that has serious repercussions on the principle of checks and balances between the three branches of government, and Bush and his posse, as they have done the past eight years, will push for more executive power every chance they get.

Like Damozel, I wonder why, except for a brave few, conservatives aren't worried about the executive branch having so much power, given that Barack Obama may well be the next president. Perhaps, like the Bush and his posse, they don't give a fig about consequences and collateral damage; all they care about is grabbing as much power for their side now.

Fortunately for us who care about accountability and the rule of law, the courts gave this first round to Congress. Now, if only Congress wouldn't blink first.

More on this issue at Memeorandum.

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