This is Really Quite Amazing

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.

A landmark decision, I think. More, perhaps, after I have had time to consider it more carefully.

UPDATE: 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:

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]

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):

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.

* * * *

I should emphasize something here: This is not the first Administration to have articulated the view that certain presidential advisers are immune from congressional process: It has been a mantra in Administrations of both parties for some time, which often have permitted close presidential advisors to testify before Congress while at the same time claiming to "preserve" a right to object to compulsory process. And in 1999, Attorney General Reno memorialized such an argument in Part II of this formal opinion; and that opinion became the basis for an an even broader assertion of such immunity in an opinion by Steven Bradbury last year. Judge Bates today concludes -- quite understandably, in my view -- that he is "not at all persuaded by the Reno and Bradbury opinions," because unlike other controversial OLC opinions on privilege authored by Ted Olson and Chuck Cooper, "which are exhaustive efforts of sophisticated legal reasoning, bolstered by extensive citation to judicial authority, the Reno and Bradbury OLC opinions are for the most part conclusory and recursive."

So the 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.

Quite frankly, it would not have been difficult for Judge Bates to find ways to avoid reaching the merits question -- either by adopting one of the Executive's standing, cause-of-action or prudential arguments, or by simply delaying his decision until January, when the posture of the dispute might well be changed by the new Congress and President. He did not do so, evidently in part because he so strongly believed that the acceptance of the immunity argument would be "an unacceptable result," and would so fundamentally and improperly shift the balance of powers between the political branches.

It bears mentioning that the judge who so ruled 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.

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 Sandra Day O'Connor (Hamdi and Rasul), Anthony Kennedy, David Souter and John Paul Stevens (those, plus Hamdan and Boumediene), Antonin Scalia, at least as to U.S. citizens (Hamdi), Michael Luttig (Padilla), Douglas Ginsburg (Bismullah), and in recent days Judges Sentelle (Parhat), Wilkinson, Williams and the other Republicans on the Fourth Circuit (al-Marri), and Bates (Miers). 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.

[DISCLOSURE: I provided very modest assistance to the House Judiciary Committee on the case -- principally by participating in a moot court.]
Posted 11:45 AM by Marty Lederman [link]