A federal district judge appointed by President George W. Bush to the bench has done the right thing, ruling definitively this morning that the President’s claim of absolute immunity for his advisors from Congressional oversight and subpoena is “entirely unsupported by existing case law.”
The ruling, by Judge John Bates, is as important as much because of who issued it as it is for its impact upon Congressional investigations into presidential wrongdoing.
Certainly the ruling will open the way for Democrats in Congress to move harder to investigate the abuses of the current administration, which have been stymied by administration refusal to provide witnesses, even to come in and plead the Fifth Amendment protection against self-incrimination.
In the specific case under consideration here, the House Judiciary Committee had been attempting to force the appearance of Josh Bolton, the president’s former chief of staff, and Harriet Miers, former White House legal counsel, to testify about the White House role in the firing of a number of federal prosecutors around the country who were reportedly deemed insufficiently political in their unwillingness to “go after” Democratic elected officials, or to interfere with the election process.
Bush had asserted that all such aides have blanket immunity from Congressional inquiry under the concept of “executive privilege.”
But Judge Bates disagreed, saying that the White House had failed to show a single case in which the courts had held White House aides to be immune from Congressional subpoenas. In a strongly-worded 93-page ruling, he not only said that no such blanket immunity existed, and that aides had to respond to congressional subpoenaes. He also ordered that the White House must hand over requested documents—something that the White House for both of the president’s two terms, has been unwilling to do.
Of course, it is a certainty that the Bush administration will appeal Judge Bates’ ruling to a higher court, and the process could end up dragging on beyond the end of Bush’s term of office, which ends on Jan. 20. But with this ruling, Congress should feel much more confident about going after those, like Miers, Bolton, Karl Rove (recently cited for contempt of Congress himself) and others, who refuse orders to appear and testify. Congress should also be more willing to consider using its own power of inherent contempt to go after such witnesses by having their own officers arrest and jail recalcitrants.
The other important thing about Judge Bates’ ruling is that it suggests, happily, that there are principled Republicans, even among the slew of so-called conservative “constructionist” judges that Bush has been larding the federal bench with, from the district level to the Supreme Court. At least some of these judges, apparently, once confirmed in their lifetime offices, do take their oaths of office to uphold the Constitution seriously. Judge Bates (who, though I didn’t know him personally, attended Wesleyan University in Connecticut at the same time I did, graduating in 1968) worked as a deputy independent counsel in the Whitewater Investigation of President Bill Clinton, which was an obvious political plus in his gaining a federal judgeship nomination by the Bush White House. In 2006 he was also appointed by Chief Justice John Roberts to serve on the secret Foreign Intelligence Surveillance Court that is supposed to oversee domestic spying activities of the National Security Agency.
I am assuming the best of Judge Bates, i.e. that he ruled based on his reading of the Constitution and court precedent. But of course it could also be that this ruling is a sign that Bush judicial appointees are reading the political handwriting on the wall: that the Bush era of seeking to aggrandize absolute executive power is coming to an end. With the president’s public support dwindling to just 21 percent, and with all signs pointing to a big Democratic win in upcoming Congressional elections, not to mention a possible Democratic president in the White House this November, we may start to see at least some Bush-appointed judges concluding that supinely acceding to the wishes of the Bush/Cheney White House may not be the wisest career move for anyone hoping to move up to a higher court.
Whatever the reasons for this important decision, I commend Judge Bates for upholding the Constitution, and its all-important establishment of three separate, co-equal branches of government.
Now if only Democrats in Congress would do the same thing. ______________ DAVE LINDORFF is a Philadelphia-based journalist and columnist. His latest book is "The Case for Impeachment" (St. Martin's Press, 2006 and now available in paperback edition). His work is available at www.thiscantbehappening.net
http://www.thiscantbehappening.net
Dave Lindorff, a columnist for Counterpunch, is author of several recent books ("This Can't Be Happening! Resisting the Disintegration of American Democracy" and "Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal"). His latest book, coauthored with Barbara Olshanshky, is "The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office (St. Martin's Press, May 2006). His writing is available at http://www.thiscantbehappening.net
I think they are still considering each preemptive pardon request on a case by case basis? - Just not a general blanket pardon for all who were involved in the "executive orders" no shows or no comments..
I don't have the NYT article link that discussed this, but there is a reference to it here:
The original requests were for "broad based pardons for administration officials and others who committed crimes at the behest of the president in his prosecution of the so-called war on terror", and I think those are what the judge was referring to?
Instead, "A spokes-person for the Justice Department said that the administration intends to review every application for clemency and that the agency will give individual recommendations to the president based upon the specifics of each petition."
by
Aurora (0 articles, 3 quicklinks, 0 diaries, 381 comments)
on Thursday, July 31, 2008 at 12:35:10 PM
I read about it in Fromkins article in the Washington Post. Froomkin notes that the judge Bates points out that in a Nixon related ruling by the SCOTUS the SCOTUS claimed for itself the right to determine when executive privilege can be used when there is a conflict between Congress and the President. An interesting factoid to me.
But my main concern is that whilst this good news tells me there is a judge in the US that is doing his job well, the same article by Froomkin makes clear that that judge was making (or acknowledging) that his opinion was on a very narrow matter of law. I think Froomkin points out, or at least suggests, rightly, that if Congress and the President get into a wrestling match over executive privilege in each particular case in which it is used, and then go to the federal courts for a ruling in each case, then effectively what happens is that the clock plays out on the Bush administration and nothing get resolved in real time.
Well really nothing to do with accountability for crimes happens in the time of the Presidency and the world and those who 'hunger for justice' will just go on getting hungrier and angrier.
The Democratic Party in Congress has to step up and have some political balls on this impeachment issue or sooner or later there are going to Americans getting their nuts cut off right and left.
Torture and aggressive invasion are serious moral wrongs carried out in circumstances and by Presidents etc where the courts are simply unable to play a preventative role - all the courts can do is try to mop up the worst of the mess afterwards. They aren't resourced to get all the mess.
Responsibility for both preventing mess and cleaning it up rests with the entire body politic.
If Bush isn't impeached I will be a person in the world confidence in the rule of law or confidence in the word of Americans on treaties. It really won't matter to me if Obama is President or if Osama Bin Ladin is. I will know that without impeachment the American system is broken so bad that torture and aggressive invasion is on the table for some now. And that puts them on the table for all.
I will have to spend my time learning to live in a lawless world. I will have to respect that every terrorist that strikes at America may have a moral point and may have right on their side. Of course they all won't but the moral prohibition against terrorism is based on a rule of law that makes terrorism unnecessary. No rule of law and terrorism may be necessary again.
If we lose the rule of law I will hold the American people to blame. Bush will be mostly to blame. The neocons will be to blame. Pelosi will be to blame and every US citizen that has done nothing to protest or object and is of voting age with be to blame in the courtroom of my mind. If Americans with all their privileges can't make a national democracy connected to a framework of international agreements and promises based on mutual accountability work then I will no longer consider national democracies or their laws to be valid.
I am about half way through my expected life span. I see in the world a test of the character of the world as constituted in a subset of the population. I will judge that population and the character of the world and radically reevaluate how to live with a bad world and a mean world if impeachment doesn't happen.
The neocon ideology isn't one all can join. Without the rule of law there is no possibility of being peaceful and non violent all the time without being a victum.
by
Brett Paatsch (0 articles, 2 quicklinks, 22 diaries, 1042 comments)
on Friday, August 1, 2008 at 12:22:29 AM
Apologies for typos and poor grammer in my comments
I don't mean to disrespect you by peeing in you peice Dave. Stream of consciousness writing has some merit in terms of getting a timely response out there but I know it comes across as sloppy too. You have consistently been one of the good guys in your participatory democracy. You have been the sort of American that people in foreign countries with good will could have relied upon to keep your nations word.
Saddly when war breaks out it isn't only the bad guys on both sides of a proposition that get hurt. I'm sure 1930's Germany, and the southern States in the US civil war had plenty of decent folks too.
by
Brett Paatsch (0 articles, 2 quicklinks, 22 diaries, 1042 comments)
on Friday, August 1, 2008 at 12:32:14 AM
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