Balkinization  

Thursday, July 31, 2008

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.]

Comments:

This should be an interesting opinion. There does not seem to be any politics involved as Bates was appointed by W, was a protege of CJ Roberts and Renquist and participated in the Whitewater investigations.
 

The reality is that executive privilege has been abused for years, by Presidents of both parties. It's a pretty weak claim against congressional oversight (it's much stronger against lawsuits by private parties). Rather, it's a tool to push back and get investigators to back down. But somehow, the Bush people believed their own BS, and stupidly got into a court fight about it, which they are likely to lose and which will cut back on the powers of the presidency that they wished to expand.
 

BDP Subtext:

"But if Bill Clinton had appointed Bates, that would be prima facie evidence that this is a partisan hitjob by our dictatorial judicial overlords..."
 

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.

Wow, I like that, it seems like there's a kind of a fun catch-22 there. If that's held to then either they have to admit the President was involved in the investigated acts, or they have to to some degree give up their executive privilege claims. Somehow I doubt they'll prefer the former option...
 

Marty:

Isn't it more likely that Judge Bates realizes that, unlike when he ruled on the Cheney energy task force issue, we are now on the eve of the Executive Branch returning to Democratic hands, and he wants to deny immunity to the new Democratic President?

After all, he must realize that between appeals, specious over-assertions of privilege in response to particular questions, and other delays, neither Miers nor Bolton will ever have to give a single substantive answer to Congress.
 

i found the final section on the log book to be quite interesting.

apparently, while not requiring the Executive to provide a logbook, Judge Bates is requiring them to provide enough information on each claim of privilege for the court to rule on it.

suggesting that such rulings would be made promptly in order to vindicate the rights of the house.

this should go a long way to getting us to invocations of the fifth amendment.
 

aj,

judge bates addressed the mootness question you raise by finding that this particular problem is likely to be recurring and virtually always subject to mootness due to the time involved in reaching an impasse and the temporary nature of each house body. on these grounds, he decides a decision is proper.

judge bates also notes that it is a very inefficient way for the house to get information and investigate.

this is the leverage the executive has in negotiating the testimony of its advisors.

to accept the administration's position is to alter that backdrop of ultimate judicial resolution in favor of the executive in such a way that the executive will never have to comply.

this is contrary to existing supreme court precedent going back to marbury.
 

Man, this Gonzo thing turned out to be productive beyond my wildest expectations and we are not even half way through it!

Makes you feel good.
 

ML

I agree completely with your observations. I have been blogging about this case for a while now at pointoforder.com. Initially, I thought that Bates was likely to dismiss the case on standing grounds based on his ruling in Walker v. Cheney, but after hearing the oral argument, it seemed clear he was going in a different direction.

One thing that I find hard to understand. Why did the WH decide not to have Miers appear at all, rather than have her appear and assert executive privilege on a question by question basis (as did Sarah Taylor)? Do they give bonuses over there for counterproductive legal strategies?
 

I found these two passages compelling regarding separation of powers claims:

"Rather than running roughshod over separation of powers principles, the Court believes that entertaining this case will reinforce them.
Two parties cannot negotiate in good faith when one side asserts legal privileges but insists that they cannot be tested in court in the traditional manner. That is true whether the negotiating partners are private firms or the political branches of the federal government. Accordingly, the
Court will deny the Executive’s motion to dismiss."

"The Executive cannot identify a single judicial opinion that recognizes absolute immunity
for senior presidential advisors in this or any other context. That simple yet critical fact bears
repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law.
In fact, there is Supreme Court authority that is all but conclusive on this question and that
powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore
rejects the Executive’s claim of absolute immunity for senior presidential aides."
 

I think the ruling is obviously right, (You can search the Constitution from one end to the other for any suggestion of "executive privilege"; It's a plan for legislative supremacy.) but, "That is an unacceptable result."???

So what? You're not a constitutional convention, dude. What YOU find unacceptable isn't at issue here. Stick to arguments that actually have some bearing on the issue.
 

Brett:

[b]ut, "That is an unacceptable result."???

I don't think they meant this as "aesthetically unpleasing" or "not to my tastes and preferences".

This phrase "unacceptable result" is often shorthand for the end results of a particular interpretation or construction which said results are patently absurd, ridiculous, or unfair (such as a "victim compensation formula" that perversely requires the victim to pay their attacker under certain circumstaces). In constitutional and statutory interpretation (and there has to be some "interpretation" otherwise we wouldn't have courts), some canons of construction insist, even more strictly, that an interpretation that makes a law or portion thereof a nullity should be disfavoured. Even more so, such interpretation as defeats the purpose of that very law....

Cheers,
 

Do they give bonuses over there for counterproductive legal strategies?

That should probably be one of the questions that Congress asks Ms. Miers. It would explain a lot.
 

Doesn't anyone else find it extremely depressing that the court had to, or at least felt it needed to, address so much time and attention to basic procedural and Constitutional issues?

215 some years after the enacting of the Constitution, can it really be that Congress's (or maybe just the House's) right to enforce it's subpoena, and the proper mechanism for doing so, is really so unsettled?

As a matter of common sense, and even some of the citations in the decision, one wouldn't think so, but having to devote so much time and energy to such basic questions is surprising to me. What may be worse is that Mr. Balkin feels that the court could have "easily" accepted any of these arguments, effectively meaning, at least as I understand it, that the House's only choice for enforcing such a subpoena would be to arrest the subjects of the subpoenas?

So many attorneys, so much litigation, and a question like this is really unresolved? And can take up so much of the time and resources of the government? Depressing to me, anyway.
 

Doesn't anyone else find it extremely depressing that the court had to, or at least felt it needed to, address so much time and attention to basic procedural and Constitutional issues?

Yes, but this is an example of just how radical the Bush Administration is in it's view of government. They challenge even the simplest, most uncontested principles of the Constitution. This is far from the first or most serious.
 

Is it just me, or is the claim of executive privilege almost invariably mean "we did something illegal or embarrassing that we don't know anyone to know about."?

Are there valid claims of executive privilege? I find the idea that the president will get better advice if the advisor knows that his advice will not be made public to be weak. It seems to me that the advisor would give better advice if he knew that his advice would be made public. Certainly it would be less likely to be illegal.
 

Hannk Gillette:

Are there valid claims of executive privilege? I find the idea that the president will get better advice if the advisor knows that his advice will not be made public to be weak. It seems to me that the advisor would give better advice if he knew that his advice would be made public. Certainly it would be less likely to be illegal.

It's kind of like attorney-client privilege. We assume that the "consultation" will work better if no one else is listening. We tolerate this for criminal prosecutions, due to the fact that the defendant is entitled to counsel by dint of the BoR. Why the preznit is "entitled to counsel" is beyond me.

Cheers,
 

Doesn't anyone else find it extremely depressing that the court had to, or at least felt it needed to, address so much time and attention to basic procedural and Constitutional issues?

No. This decision, in its thoroughness, is a nice heavy brick of precedent, stacked right on top of U.S. v. Nixon, upon which it relies heavily.
 

Arne Langtsemo:

It's kind of like attorney-client privilege. We assume that the "consultation" will work better if no one else is listening. We tolerate this for criminal prosecutions, due to the fact that the defendant is entitled to counsel by dint of the BoR. Why the preznit is "entitled to counsel" is beyond me.

The reason they allow it is so executives and their advisors are free to ask "experts" potentially stupid questions without needing to worry about whether they'll see the question in a political ad. Unfortunately, this administration made much too little use of that, e.g., not asking "what if Iraq fragments after we invade?", or "what happens after the levees fail?"
 

nothing to make rove crack a sweat though
 

David Seibert:

The reason they allow it is so executives and their advisors are free to ask "experts" potentially stupid questions without needing to worry about whether they'll see the question in a political ad.

... which we ought to know about. The right not to self-incriminate has to do with criminal defence. That's not applicable here ... or is it?

Regardless, the Rethugs certainly thought little of privilege when they wanted to know if Clinton's penis had been in embarrassing places....

Cheers,
 

The idea is that it's in everyone's best interest for the president (or any other executive) to understand what they are doing, and make really informed decisions. If those proceedings might be made public at a later date, any good politician will be very careful to keep up appearances, and so they almost certainly won't ask enough questions.

This is a basic management issue - any good management book will tell you that the best managers ask lots of questions, even if they might look stupid. Unfortunately, providing "stupid" sound bites is unacceptably dangerous to politicians, so top political executives (like the president) do need a limited executive privilege so that they can gather the information they need to make good decisions without potentially endangering their political careers. As noted previously, the traditional view is that this privilege only applies to discussions with that top politician, and not to discussions between their aides (as claimed by the current White House).
 

"the traditional view is that this privilege only applies to discussions with that top politician, and not to discussions between their aides (as claimed by the current White House)."

This may be the traditional view but the DC Circuit rejected that view in the 1990s (in a case where the Clinton WH was trying to block subpoenas issued by the Independent Counsel investigating Mike Espy)
 

David Seibert:

The idea is that it's in everyone's best interest for the president (or any other executive) to understand what they are doing,...

Great. Let's elect one that does. And if they don't -- if they're complete morons (or their advisors are) -- I want to know about it. After all, I'm paying their salary.

Cheers,
 

(general musings)

Not so long ago some here publicly wondered about the apparent lack of substantial input from the academic legal community on one of the still unresolved important constitutional issues (congressional subpoena powers) even when the issue was heading to courts for the first time in 200 years .

I wrote at the time that the community which everybody including itself recognizes suffers deeply from the inferiority complex vis-a-vis federal judiciary could improve its standing and self-esteem by preemptively surveying the legal questions involved (seminars, symposia, etc) which would effectively impose some intellectual boundaries for the courts to observe.

Well apparently the community offered next to nothing, the issue discussed here was decided solely by some federal judge (Bates) in a decision that is likely to reverberate in legal circles for years to come. The community is now busy diligently parsing it, a very subservient role they adopted for themselves long time ago. Why?

Why WHY? Well because we have some 150 law schools in this country good enough to have a chapter of Federalist Society in them, each with at least two faculty members (for a total of 300+ country-wide) claiming to know a thing or two about constitutional law and knowledgeable enough about it to teach and research it. So it is rather surprising they had little, almost nothing to say before some federal court pronounced on it. And not very good for the country at large as vigorous academic discussion beforehand could only help in arriving at something reasonable.


The explanations seems to be this, the law especially constitutional is contrary to what general public think far from absolute, it is in fact inherently arbitrary. We have very little in terms of first principles, the decisions are mostly determined by a need to preserve the existing power structures. Think about the role of courts in maintaing royal order in mediaeval England, slavery in this country, apartheid in South Africa, party rules in Nazi Germany or Soviet Union, etc, etc.

Consequently there is no way anyone can deduce by any "natural" logic what any particular court decision in unsettled cases will be. No wonder constitutional law "professoriat" here and in any other country limits itself to post-facto parsing of whatever is handed down to them by constitutional courts.

Lousy job but somebody gotta do it!
 

will this comment thread also disappear in some strangle legal black hole for some inexplicable reasons, Prof. Balkin?
 

Arne Langsetmo:


Great. Let's elect one that does [understand what they're doing].


That sounds good, but the fallacy in that line of argument is that the president (or even a governor or mayor) might need to know almost anything you could imagine. That just doesn't work in practice - paraphrasing Peter Drucker, everyone plans for jobs that should be filled by univeral geniuses, but the only thing you can count on is universal incompetence. The only way such a top executive job works is if they can be almost continuously educated by the best experts, so they absolutely need that ability to ask potentially stupid questions. That's the way Socrates did it,and it works, eh?

David
 

David Seibert:

That sounds good, but the fallacy in that line of argument is that the president (or even a governor or mayor) might need to know almost anything you could imagine. That just doesn't work in practice - paraphrasing Peter Drucker, everyone plans for jobs that should be filled by univeral geniuses, but the only thing you can count on is universal incompetence. The only way such a top executive job works is if they can be almost continuously educated by the best experts, so they absolutely need that ability to ask potentially stupid questions. That's the way Socrates did it,and it works, eh?

You don't have to be knowledgeable to avoid asking stoopid questions.

But if "everyone does it" (and I'm not sure I grant you that), then what's the problem?

I still want to know if my chief executive -- and the stooges and morons he decided to hire -- is bone-numbingly stoopid. And saving him (or her) from embarrassment or political consequences doesn't outweigh that.

Sorry, but I want to know what I'm paying for, and I have that ri This is something that ought to be crystal clear to anyone that's not been a Rip Van Winkle these last seven years. For instance, let me jog your memory with this (and that's just the latest outrage).

Cheers,
 

Arne Langsetmo:


You don't have to be knowledgeable to avoid asking stoopid questions.

But if "everyone does it" (and I'm not sure I grant you that), then what's the problem?


Hi, Arne. I'll try to explain one last time, as three is my limit (management consultants rule of thumb).

People can't do much of anything without at least appearing to ask some stupid questions, or making some stupid comments. You can see that in some of the recent slips by presidential candidates, such as "Israel is a great friend of Israel." Would any candidate ever really be stupid enough to say that?

This is also a problem for top corporate executives. Like the presidency, these jobs are insanely complicated, way beyond anything you would find in a court of law. [They aren't more difficult than legal work, they just require different skills - top management requires the ability to imprecisely understand fiendishly complex situations involving millions of people and provide imprecise but useful leadership to a huge number of people, while top law requires the ability to construct precise logic based on relevant laws and then turn that into a concise and comprehensible presentation.] Anyway, because top executives may need to know virtually anything, questions that display their lack of knowledge are inevitable. Without executive privilege (for them, not their aides), political executives would only be able to safely discuss subjects that they know something about, and their jobs require more than that.

Really weak politicians readily distinguish themselves through their official communications and acts, as we've seen during the past 7 years. You certainly could tell that W was not exactly the best president without seeing any of his private communications, right? Because of that, you don't really need to see an political executive's private conversations to evaluate them, since you have extensive public records of what they did and how they voted. Their aides don't have this sort of public record, which may be why their private conversations are only protected by executive privilege if they can be linked to public actions by the political executive.

BTW, I have management expertise but not a lot of legal knowledge; that's what I read this blog for. However, I don't think that removing executive privilege would do anything to expose the alleged forgery you referenced in your link, as the participants in that are protected by the 5th amendment. My guess is that the current WH (or at least some parts) might try to get around removal of executive privilege protections by adding a criminal element to everything and claiming 5th amendment protection. [Yes, I'm that cynical :-(.]

Bye,
 

David Seibert:

People can't do much of anything without at least appearing to ask some stupid questions, or making some stupid comments. You can see that in some of the recent slips by presidential candidates, such as "Israel is a great friend of Israel." Would any candidate ever really be stupid enough to say that?

That's not stoopid. That's misspeaking; a slip of the tongue. Everyone does this and everyone (except RW foamers who want to pretend that they and their candidate never makes such slips). Stoopid is saying that the Iraq-Pakistan border is troublesome. Or that Iran is training al Qaeda in Iraq. Or mistaking Sunni for Shia repeatedly.

This is also a problem for top corporate executives. Like the presidency, these jobs are insanely complicated, way beyond anything you would find in a court of law.

What a pile'o'crapola. I've talked to more "top executives" than I would ever want to. Some are smart. Some are not so smart. But they're hardly stellar intellects (Take Rumsfeld, for instance. Or Cheney).

Anyway, because top executives may need to know virtually anything, questions that display their lack of knowledge are inevitable.

As I said, you can be unknowledgeable about something. That is a different thing from being stoopid. The competent person recognises their lack of knowledge, figures out what they need to know, and goes about finding that out. And if they find it easier to defer to others that already have the knowledge and/or expertise, well and fine -- but that doesn't include College Republican sons of big donors, Regent University graduates, and people like Michael Brown....

[Y]ou don't really need to see an political executive's private conversations to evaluate them, since you have extensive public records of what they did....

Not when the refuse to tell you what they did and why they did it (or worse yet, lie about it).

Stuff like this and this (just for starters).

I don't think that removing executive privilege would do anything....

The landmark (and most definitive case) on "executive privilege", U.S. v. Nixon, recognised an "interest" in keeping policy deliberations and such secret, but did not hold that any such claimed interest would override the competing interests of others to know what was being done. At best, in dicta (because such wasn't at issue in U.S. v. Nixon), they stated that national security concerns might be strong enough to provide such a privilege in the appropriate case.

I'd note that the Republicans (through their presecutor Starr) shredded "executive privilege" in their effort to sniff panties. About the one aspect of privileged communictions they didn't manage to pierce was ACP for Vincent Foster (and I got a LTTE published in the N.Y. Times at that time concerning such).

Cheers,
 

DOJ is appealing the Judge's ruling and asking for a stay in the interim. My guess is that Bates will not be pleased by this request, particularly since the Administration appears to have made no attempt to resolve the issue through negotiation, as the judge strongly urged.
 

The judge is to be applauded, as are the many people who normally fall in the conservative camp -- sometimes across the aisle as well also deserve.

I hope "presidential findings" get whacked, too.
 

FYI, Judge Bates denied the Justice Department's request for a stay.
 

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