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Learning from Delay

The D.C. Circuit granted the Justice Department not one but two extensions to file its opening brief in a lawsuit to enforce subpoenas against two Bush White House aides…

  • Emily Berman
March 5, 2009

The D.C. Circuit granted the Justice Department not one but two extensions to file its opening brief in the House Judiciary Committee’s lawsuit to enforce subpoenas against two Bush White House aides.

Former White House counsel Harriet Miers and former White House chief of staff Joshua Bolten, whose brief originally was due on Feb. 18, asked for the delays in the hopes that ongoing negotiations (between the House, the administration, and former President George W. Bush) on an out-of-court settlement would make further litigation unnecessary.

These repeated extensions may seem like nothing more than mundane legal procedural developments. In fact, they bring into sharp relief two very interesting points.

First, everyone involved in this drama wants the case to settle. The questions it raises—about the limits of executive power, the role of the judiciary in political disputes, the scope of Congress’s oversight power—are political and judicial hot potatoes. Should the Court address any of these issues directly it will have to commit to an answer, one that will declare constitutional winners and losers, and forever alter the balance of powers between the branches. Each of the parties involved recognizes how much they have to lose.

President Obama prefers not to cede the powers of the presidency, voluntarily. But on the campaign trail, he labeled as “misguided” President Bush’s remarkable assertion that presidential aides are absolutely immune from any obligation to honor congressional subpoenas. Having already been excoriated by significant portions of his base for toeing too closely to the Bush-era line on issues like state secrets and rendition, Obama no doubt hopes to avoid adding to this list of disappointments.

As for President Bush, his worst case scenario would be an unfavorable decision from the appeals court. The former President and his legal team took the course of action they did because, as with so many of Bush-era court battles, they wanted to create a precedent. Bush hoped to establish a firm legal rule immunizing White House aides from congressional subpoena. To instead establish exactly the opposite would be disaster. Yet that disaster is in fact the most likely outcome. Already the lower court judge in the case—a George W. Bush appointee, incidentally—emphatically rejected Bush’s monarchical claims of immunity for his aides, referring to them as “unprecedented” and “without any support in the case law.” Legal experts agree that the decision is well-reasoned, careful, and correct. It likely would be affirmed.

As for Miers and Bolten themselves, one can only imagine how eager they must be to put this episode behind them.

And finally, there is the appeals court itself. It has shown itself eager to avoid opining on these weighty matters. Not only has the court continued to grant extensions to allow settlement discussions to proceed. But it prevented the lower court decision from going into effect pending the outcome of the appeal in order to allow “the new President and the new House an opportunity to express their views on the merits of the lawsuit.” Most certainly the idea was that new President and the new House would reach an agreement on the matter.

A negotiated settlement rather than continued litigation is also in the best interests of the American people. The subpoenas in question were issued as part of an investigation into charges that the White House misused the federal criminal justice system to influence prosecutions for partisan purposes and to disadvantage political opponents. It is imperative that Congress be permitted to complete its investigation, to hold accountable anyone who engaged in wrongdoing, and to take any necessary remedial action to prevent a recurrence.

The court’s willingness to allow the parties to continue their negotiations benefits everyone.

But the repeated delays also highlight a second, important fact. They illustrate the productive role that the courts can play in the resolution of inter-branch disputes. President Bush argued that the courts had no business adjudicating this controversy, that the very nature of the dispute rendered it unfit for judicial resolution.

But it is only through the continued pressure imposed by looming court deadlines—and fear that the judiciary would repudiate their extreme legal positions—that Bush administration officials have returned to the negotiating table. After years of stalemate, the repeated requests for delay indicate that vigorous settlement negotiations are ongoing. Absent judicial involvement, there would be no reason for those discussions and there would be no means for Congress to obtain the information it requires.

The courts served this role once before, when President Ford instructed AT&T to “respectfully decline” to comply with congressional subpoenas for information about warrantless wiretaps of U.S. citizens. Through withholding definitive judgment and instead repeatedly encouraging Congress and the Executive to find a mutually accommodating resolution, the courts ushered the dispute to a negotiated resolution.

Ultimately, the Miers/Bolten case will probably be resolved through extrajudicial negotiations—it is in everyone’s interest. But the crucial role played by the courts in prompting reluctant negotiators to find common ground should not be minimized.