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Court Not Buying Administration's Extreme Views

For an Administration that has spilled gallons of ink in efforts to justify its extreme pro-Executive views, the Bush White House sure has fared poorly in court....

  • Emily Berman
August 2, 2008

For an Administration that has spilled gallons of ink in efforts to justify its extreme pro-Executive views, the Bush White House sure has fared poorly in court.

In the last five years, the Supreme Court alone has rejected as contrary to law the Executive's position on the scope of jurisdiction of the federal courts (it does, in fact, reach to Guantanamo Bay); the rights possessed by citizen and non-citizen detainees (they are both, in fact, entitled to habeas corpus); and the President's authority to unilaterally try and punish so-called "enemy combatants" (military commissions must, in fact, be sanctioned by an act of Congress). And if the Executive had not so aggressively used the state secrets privilege to keep courts from ruling on its warrantless surveillance program, "enhanced interrogation" tactics, and extraordinary rendition, who knows how many more defeats it would have suffered at the hands of Lady Justice.

The Administration must heed the lesson that courts have been trying to impart: The time has come for cooler heads to prevail, for conciliation to take precedence over litigation, and for the Executive to work with the Congress to remedy the harms done—to our country and to our constitutional structure. Thursday's decision from a federal court in the District of Columbia may provide just such an opportunity.

The decision removed yet another brick from the wall of the monarchical presidency that Bush and his close advisors have so studiously gone about building over the past eight years, ruling that former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten must comply with congressional subpoena demanding information regarding the forced resignations of several U.S. Attorneys in late 2006. The case arose when Miers and Bolten, at the President's instructions, refused to comply with the subpoenas on the duel grounds that the information requested was subject to executive privilege and that close presidential aides were immune from congressional subpoenas. Congress, in an effort to vindicate its right to conduct legitimate investigations, filed suit to compel Miers and Bolten to comply with the subpoenas.

The opinion, written by Bush appointee Judge John D. Bates, rejects wholesale each of the arguments put forth by the Justice Department: The government is incorrect when it argues that the courts have no power even to hear that case against Miers and Bolten. The government is incorrect when it asserts that presidential advisors have absolute immunity from being required to testify before Congress. The government is incorrect when it claims that Congress is not entitled to a list of documents being withheld on the basis of a claim of executive privilege.

Judge Bates' decision seems to clear the way for Congress to complete its investigation into the motivations behind the dismissal of the U.S. Attorneys and to determine, once and for all, just how far and how wide the politicization of the Justice Department already partially documented in recent Inspector General reports extends. The opinion declares that Miers must provide her testimony to the congressional committee that subpoenaed her, that all non-privileged documents must be turned over, and that any material withheld based on a claim of privilege be labeled as such to facilitate settlement negotiations between the parties. Indeed, the opinion twice implores the parties "to resolve their differences constructively, while recognizing each branch's essential role."

Historically, conflicts over information between Congress and the Executive have been resolved in just such a manner—give and take, offer and counteroffer, with each side recognizing the legitimate interests the other is trying to protect. Ultimately, the disputes usually result in a compromise position, with neither side getting exactly what they wanted.

Is it too much to ask that, now that the judiciary has once again rejected as "without any support in the case law" the President's position that he alone is the judge of his own privilege, the White House will engage in good faith compromise negotiations? Is it possible that the idea will dawn that absolutist positions and assertions of unilateral power simply will not win the day? Or will it instead continue to dig in its heels, appeal the decision and drag out the conflict for months to come, continuing to deny to the American people the transparency on which a functional democracy depends?