an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Vice President Cheney's chief of staff, David S. Addington, was among the leading White House critics of the FBI raid, telling officials at Justice and on Capitol Hill that he believed the search was questionable, several sources familiar with his views said. . . . Addington -- who had worked as a staffer in the House and whose boss, Cheney, once served as a congressman -- quickly emerged as a key internal critic of raiding the office of a sitting House member. He raised heated objections to the Justice Department's legal rationale for the search during a meeting Sunday with McNulty and others, according to several sources.
Perhaps this is simply the function of a very principled view of a very strict regime of separated powers, going in both directions.
Or perhaps Addington -- always on the lookout for threats to Executive prerogatives, no matter how speculative -- is looking ahead, contemplating the impact of this precedent if and when Congress starts subpoenaing documents from the Executive branch . . . .
In any event, just as the Jefferson search was the alarm bell that finally and belatedly awoke the Congress to the notion that perhaps it has some institutional prerogatives worth fighting for, Addington's campaign to return the documents to Rep. Jefferson apparently was the straw that broke another camel's back -- about this matter, high-ranking DOJ officials were willing to stand up to Addington: Reportedly the Attorney General, Deputy Attorney General and Director of the FBI all threatened to resign if Addington prevailed. Posted
by Marty Lederman [link]
This is so bizarre. I can't figure out what Addington or the DOJ are thinking.
"contemplating the impact of this precedent if and when Congress starts subpoenaing documents from the Executive branch . . . ."
That is, of course, the best case scenario, the branches actually getting into some kind of fight to see which can expose more of the others' wrong doing, instead of the current cozy arrangement of mutual enablement.