U.S. District Judge John Bates handed the Bush administration another loss in its war on the Constitution and Congressional oversight yesterday when he denied a stay of his previous order that Harriet Miers and Joshua Bolten appear before the House Judiciary Committee in compliance with Congressional subpoenas.
The Judge made clear that he views the administration's claims of absolute immunity from Congressional subpoenas as ridiculous and not even worthy of serious consideration, calling their arguments "weak."
He said the Executive has "failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue" or that it has even raised a serious or substantial question that would warrant suspension of his previous order. He further stated that the "absolute immunity claim here is entirely unsupported by existing case law."
Without any supporting judicial precedent whatsoever -- and, indeed, in the face of Supreme Court case law that effectively forecloses the basis for the assertion of absolute immunity here -- it is difficult to see how the Executive can demonstrate that it has a substantial likelihood of success on appeal, or even that a serious legal question is presented.
Bates ridiculed the government's lawyers and their legal reasoning, saying:
The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important -- primarily because it involves the relationship of the political branches -- does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue.
He said Miers and Bolten remain fully capable of asserting executive privilege on a question-by-question basis, and that "there is no risk whatsoever that any confidential or privileged information will be disclosed during the course of [their] testimony."
Furthermore, since they have been able to cite no case law that suggests that any individual is immune from compliance with Congressional subpoenas, and since "citizens have 'an unremitting obligation to respond to [congressional] subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation'," the Judge says the government's case really doesn't have any legs because the administration "likely has no appeal rights at this juncture to begin with."
The government had argued that a stay should be granted since the next Congress could still continue its investigation after President Bush leaves office. Judge Bates wasn't buyin'. He wrote:
[A]s this Court previously explained, it would be speculative at this juncture to predict how the incoming Congress and the new President will choose to proceed in this matter. What is near certain, however, is that granting a stay would deprive this Congress of the information it seeks. That rather plainly constitutes harm for purposes of this analysis.
Administration lawyers tried to blame Congress for taking so long to bring legal action against them. Again, the Judge slapped them down. He said the Committee had tried to negotiate a solution with Bush at every step along the way, and that "the Executive cannot now fault the Committee for taking the time necessary to do so."
He describes the administration's understanding of their responsibilities and required showings as "perplexing" and "confused."
Judge Bates reasoned that the public interest in seeing the Committee complete its investigation before this Congress expires is "more concrete" and better served by denying a stay.
House Judiciary Committee Chairman John Conyers said he plans to promptly hold a hearing in which Miers and Bolten will testify under oath, and in which documents about the U.S. Attorney firings are to be produced. Conyers said, "Today's ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization this Congress."
The ruling clearly rejects those efforts, but chances are, what we will see is two White House cronies sitting at a table and repeating claims of executive privilege to each and every question posed by a frustrated, impotent Congress.
It's sad when we actually have to hope that these criminals don't show up to the hearing so Congress will finally be shamed into using its inherent contempt authority to arrest them and hold them in the basement of the Capitol until they decide to comply.
