Marty Lederman
In a 93-page opinion in the Miers/Bolten contempt case, Judge Bates not only rejects all of the various Administration arguments against justiciability, but goes so far as to reach the merits and hold that there is no basis for the DOJ argument that close presidential advisers are absolutely immune from compelled congressional testimony: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.
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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. The court quite correctly rejects this view: Having earlier pointedly suggested that the undisputed facts "fueled speculations that improper criteria had motivated the dismissals" [see here, Judge Bates explained:
The court does not, of course, reach the question of whether any particular communications in the White House were privileged and, if so, whether the House's needs outweigh the privilege. (Those questions were not teed up in the motions for partial summary judgment.) But in his analysis, Judge Bates does reach at least three subsidiary questions that will have a substantial bearing on the privilege disputes (and remember that it will be Judge Bates himself who would adjudicate those disputes):
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]
1. First, as noted above, he unequivocally rejects the centerpiece of the Administration's privilege argument: the notion that the House has no legitimate interest in inquiring with respect to why the U.S. Attorneys were fired. At pages 39-41, Judge Bates explains why Congress does have a legitimate and important interest in getting to the bottom of what happened to the U.S. Attorneys, and why, and then at page 89 he adds, for good measure, that "[n]otwithstanding its best efforts, the Committee has been unable to discover the underlying causes of the forced terminations of the U.S. Attorneys. The Committee has legitimate reasons to believe that Ms. Miers's testimony can remedy that deficiency. There is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to testify."
2. Second, the court recognizes that the principal argument in favor of the Administration's absolute immunity claim was the theory that communications of close presidential advisers are categorically privileged, at least as against congressional inquiry: Why should such an advisor have to appear, reasoned DOJ, if she could legitimately assert privilege as to every question involving what she did and her communications with others? Judge Bates rejects this notion, too, at pages 83-86: "At bottom," Judge Bates explains, "the Executive's interest in 'autonomy' rests upon a discretited 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."
3. Third, the court does not resolve the factual dispute about whether and to what extent President Bush himself was involved in the decisions to fire the U.S. Attorneys. The court does pointedly note, however (note 37), that to the extent the President was not involved, any privilege clams will be on decidedly weaker ground.
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It bears mentioning that the judge . . . is a Republican jurist who worked on the Starr Whitewater team, and who was appointed to the bench by the sitting President Bush. And he ruled with the Bush Administration's claims to executive secrecy in the Cheney Task Force case (see note 38 of today's opinion, distinguishing it) -- he is, in other words, very solicitous of the legitimate needs of executive confidentiality. Which makes today's decision all the more remarkable. Judge Bates was not only taken aback by the Administration's theory of immunity; it is also fair to assume, as his opinion suggests, that he (a former prosecutor) was alarmed by the U.S. Attorney dismissals themselves. ...
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