More on the Federal Court Ruling that Senior Bush Aides Are Subject to Congressional Subpoenas

I discussed the ruling briefly earlier today. At Balkinization, Marty Lederman weighs in, calling this 93-page opinion possibly a landmark decision, ‘an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes.’ As Lederman points out,

[T]he argument itself was not new. But the Bush Administration pushed the argument much more aggressively than any Administration before it: It claimed for the first time that such immunity extends even to former officials, because everything they did was absolutely privileged; it played hardball with Congress on the question where other Administrations have acceded to such testimony; and for the first time ever, the Executive had the gumption to ask a court to ratify its immunity claims. (Balkinization)

Judge Bates wrote:

There are powerful reasons supporting the rejection of absolute immunity as asserted by the Executive here. If the Court held otherwise, the presumptive presidential privilege could be transformed into an absolute privilege and Congress’s legitimate interest in inquiry could be easily thwarted. . . . [I]f 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. (via Balkinization)

Lederman points out that Judge Bates rejected one of the keystones of the administration’s arguments: that Congress has no legitimate oversight function because the subject matter of the investigations is presidential removal of the U.S. Attorneys:

Simply put, the Executive characterizes the Committee’s investigation far too narrowly. It 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. Similarly, in Nixon v. Adm’r Gen. Services, the Supreme Court indicated that Congress’s “need to understand how . . . political processes had in fact operated in order to gauge the necessity for remedial legislation” was a legitimate topic for investigation. 433 U.S. at 453. Once again, the same can be said of the Committee’s investigation. It defies both reason and precedent to say that the Committee, which is charged with oversight of DOJ generally, cannot permissibly employ its investigative resources on this subject. Indeed, 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.” [quoting Brief of Former United States Attorneys at 10-11] (via Balkinization)

The court explained that the ‘absolute immunity’ argument is founded upon ‘a discredited notion of executive power and privilege.’

Even the President himself “is entitled only to a presumptive privilege,” and therefore “his close advisers cannot hold the superior card of absolute immunity. . . . Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate Congress’s historical oversight function.” (via Balkinization)

I wonder why so many conservative bloggers have failed to recognize what a danger Bush’s position presents as a president for future presidents (who might not be Democrats). As Jack Balkin points out, a number of Republican officials have resisted it [paragraph breaks added here]:

When the history of the Bush Administration’s executive aggrandizement campaign is finally written, a very large and important part of that story — a central theme in Jane Mayer’s new book, for instance — is just how many very strongly conservative Republicans resisted the Cheney/Addington/Gonzales/Rove agenda.

That includes not only officials within the Executive branch who are very strong defenders of executive prerogatives, such as Jim Comey, Jack Goldsmith, Pat Philbin, Peter Keisler, numerous JAG lawyers, including Alberto Mora and Tom Romig, various Republican U.S. Attorneys who resisted Karl Rove (and paid the price), Will Taft, John Bellinger, etc., but also Republican jurists such as Anthony Kennedy, Sandra Day O’Connor, Michael Luttig, and in recent days Judges Sentelle, Wilkinson, Williams and Bates.

Many of these executive and judicial officials did not, of course, hesitate to defend or uphold strong assertions of executive power or statutory construction in many instances — suffice it to say that I’ve strongly disagreed with many of them on some such questions. But they — and apparently many more like them, some of whom remain anonymous — also all took quite extraordinary steps to reject some of the most extreme views of the Bush/Cheney Administration, to stand in the way of some of the more outrageous things that the Administration has tried to do, and, as in today’s decision by Judge Bates, to treat the rule of law with rigor and respect.(Balkinization)

In the meantime, both Patrick Leahy (D-VT) (Senate Judiciary Committee chair) and John Conyers (D-MI) (House Judiciary Chair) have commented:

“I have long pointed out that this administration’s claims of executive privilege and immunity, which White House officials have used to justify refusing to even show up when served with congressional subpoenas, are wrong,” said Senator Patrick J. Leahy….

“Today’s landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law,” said Representative John D. Conyers… (NYT)

See Memeorandum for discussion of Lederman’s piece.

Author: DAMOZEL

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