Legal Commentary

A Time For Decision ... Or Arrest

By TChris

The issue before District Judge John Bates can be framed in simple terms: Does the Constitution empower the president to block enforcement of congressional subpoenas that command the testimony of senior presidential advisers concerning the firings of U.S. Attorneys? Judge Bates said yesterday:

"Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance [of powers.]"

Not really. Ruling on the question will disrupt the status quo -- an impasse -- but the balance of powers has already been disrupted by a president who considers himself above the law. Judge Bates has an opportunity to restore the proper balance: each branch acting as a check against abuses of power by the other branches. [more ...]

Moving with the pace of a sloth at rest, Congress is finally in court seeking enforcement of subpoenas served upon Joshua Bolten and Harriet Miers. At this rate, the president will be out of office (perhaps having pardoned himself on the way out the door) before the dispute is resolved. That would suit the Republicans, who would prefer to postpone the controversy until after the election, and it would probably suit those Democrats who prefer to avoid political controversy of any sort. And it might suit Judge Bates:

A federal judge on June 23 appeared very reluctant to rule on the administration's broad claim of executive privilege in the case. Historically, the judiciary has been hesitant to meddle in this area unless the stakes are clear and high. ...

For Bush officials this attitude may be a bit of good news. It means a new president will likely be in office before the dispute is resolved – and the next administration, or the next Congress, may decide to just drop the whole thing.

Anticipating the Bush administration strategy, Jeralyn wrote here:

This will take years to resolve in the courts, by which time everyone will have forgotten about why it was so important.

It's so much easier not to decide at all.

If he simply did nothing, Bates said, the case would just disappear when the subpoenas expire at the end of the year.

And so:

Judge Bates "might just let the clock run out on this," says Carl Tobias, a law professor at the University of Richmond in Virginia.

It's true that courts don't typically decide "political questions," but this is a constitutional question. There is no doubt that "the stakes are clear and high." And while it's certain that a final answer, presumably delivered by the Supreme Court (if this case ever gets that far), will not arrive before the end of the Bush presidency, that's no reason for the district court to slow-track the decision.

The judiciary is an equal branch of government with a shared responsibility to make the government operate as the Constitution demands. Resolving a conflict about the respective constitutional powers of the executive and legislative branches is a critical function of the judicial branch. It needs to live up to that responsibility in this case. And concerned voters need to keep pushing their representatives to press the court for an answer.

Judge Bates called attention to an option that he probably hopes Congress will exercise, if only to take him off the spot:

Bates even mentioned that the House could hold Miers and Bolten in contempt, and order their arrest and detention in the Capitol.

An excellent suggestion, and the only one that could possibly move the investigation along more urgently. It is nonetheless a vain hope that Congress will muster enough votes to have Harriet Miers or Joshua Bolten arrested.

As an aside, given the importance of the upcoming election to this issue:

Of the two candidates, Obama has taken the clearer stance on the issue. He generally supports the Democratic-led House Judiciary Committee in its effort to subpoena the White House, even if it means — as president — he might be weaker for it.

Full post as published by TalkLeft on June 24, 2008 (boomark / email).