On the Bolten-Miers Hearing

The issues were preliminary and the result of any ruling likely to be. But despite its preliminary nature....

June 23, 2008

The issues were preliminary and the result of any ruling likely to be. But despite its preliminary nature, a simple Monday morning hearing in the D.C. District Court had the feeling of something much more. Perhaps it was the last-minute change of venue to the District of Columbia's ceremonial courtroom in order to accommodate the larger-than-usual expected crowds. Maybe it was the presence of House Judiciary Committee Chairman Representative John Conyers at the Plaintiff's counsel's table and White House Counsel Fred Fielding on the Defendants' side. Or it could have been the momentous constitutional ramification that flow from any ruling in the case.

Whatever it was, the argument in preliminary motions in the House of Representatives Judiciary Committee's suit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to enforce congressional subpoenas issued in the course of the Committee's investigation into the controversial firings of several U.S. Attorneys in late 2006 was not the court's usual Monday morning fare.

And Judge John D. Bates, the presiding judge, at times seemed to wish he was anywhere other than in a position requiring him to reach a ruling on the issues before him. "I didn't volunteer for this," he reminded the parties at one point.

Whatever reluctance he may have felt, Judge Bates's questioning of the attorneys for the House Judiciary Committee and for the Department of Justice, which is representing Miers and Bolten in this matter, was well-informed and thorough, exhibiting a genuine command of the relevant legal and historical backdrop against which the case arises.

And while, according to observers, Judge Bates's seeming inclinations at argument are not always indicative of how he ultimately will rule, he seemed sympathetic to some of the arguments advanced by the Judiciary Committee. First, questions about the scope and applicability of executive privilege are properly decided by the courts. Second, Raines v. Byrd, a recent Supreme Court case limiting individual legislators ability to bring claims challenging the actions of fellow legislators, does not necessarily undermine the ability of a full House of Congress to enlist the courts aid in enforcing its rights. Third, the claim that presidential aides are absolutely immune from testifying before Congress is contrary to existing law, which has never extended anything more than qualified immunity or privilege to presidential aides. Indeed, he seemed a bit incredulous that the Justice Department insisted on arguing that the President and his advisors could assert absolute immunity before Congress and nobody-not Congress, not the courts-could do anything about it.

Bates also agreed with one other position-one that both parties also concede: battles over information between Congress and the Executive are best resolved through negotiation and accommodation. So while he essentially conceded, possibly for the sake of argument, that he had the power to proceed to hear the case, he seemed almost equally convinced that he should decline to do so as a matter of discretion. Wouldn't the subpoenas expire at the fast-approaching end of the congressional session? Mightn't the election of a new President in November change the way that either Congress or the Executive (or both) want to proceed in this matter? Shouldn't the fact that mootness, as he put it, "lurks on the horizon" caution against wading into the dispute at this time?

Bates seemed convinced both that the parties could reach a compromise if they tried just a bit harder and that such a result would be best for everyone involved, himself included. And, in fact, he could issue a decision that instructs them to return to the negotiating table. A ruling along those lines seems much more likely than any grand pronouncement on the respective rights of the parties on the absolute immunity and executive privilege questions raised by the case. The real question is whether he is willing to use his judicial power to play mediator to two entities who, in his words, ended up in his courtroom through their own intransigence, or if he'd rather simply wipe his hands of both of them. Only after his decision is issued sometime in the next few months will we know.