The Bates Decision: A Question Unasked And Unanswered

First off, a mea culpa. I was one of the first and strongest saying that Judge Bates would opt to just punt the contempt controversy back into Congress’s lap. I didn’t necessarily believe that he would hand a victory to the Bushies, but I did think he would, for the most part, take a pass by claiming it was not really a question for the courts and that Congress had alternative remedies available, that had not yet been exhausted, thus the issue not appropriate for consideration at this time (In fact, Bates noted on page 70 of the opinion that he would have been on solid ground doing just that).

I was wrong.

The Bush/Cheney unitary executive cult got their rear ends handed to them. Again. How shocking. Or, you know, not. They are basically batting an 0-fer since Cheney took Scalia on the robber baron aristocrat jet set hunting trip and managed to get a decision allowing him to keep the nation’s energy program secret from the nation.

But now, predictably, the dark hats of Miers, Bolten and Bushco want to delay the effect of Judge Bates’ ruling until the next of never on the appeal. However, as MadDog (good to have the dog back I might add) points out, the white hats of Conyers’ House Judiciary Committee have a response to that.

Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) opposes Defendants’ motion for a stay pending appeal on the following grounds:

(1) Ms. Miers’s claim of absolute immunity has no likelihood of success on appeal because it is baseless and contrary to Supreme Court precedent, and was thoroughly and irrefutably rejected by the Court;

(2) the Court’s non-final order of July 31, 2008 (“Order”) is not appealable, and thus a stay needlessly would cause further harmful delay;

(3) Defendants suffer no harm, let alone irreparable harm, from (a) appearing at a congressional hearing or (b) producing non-privileged documents and descriptions of the documents they seek to withhold on the basis of executive privilege;

(4) the Committee will suffer considerable harm as a result of the Executive Branch’s delaying tactics, which virtually assure that the Committee’s investigation into the forced resignations in mid-Administration of nine United States Attorneys in 2006 (“Investigation”) will not be completed until after the 110th Congress has concluded and the current Administration has left office in January 2009; and

(5) a stay would undermine the public interest by hindering the Congress from developing, if necessary, any relevant legislative remedies designed to improve the effective and fair functioning of the Nation’s criminal justice system.

This is a nicely done, pointed response to the transparently disingenuous delay tactics of the Bush Administration. In going through the decision and the latest arguments on the shape of the appellate process by the parties, I realize there is another facet to this equation that has been bugging me. Despite how good Bates’ decision is, why did it not address the refusal by the DOJ to prosecute a duly constituted, and valid on it’s face, contempt citation referred by the United States Congress?

Bates’ decision has drawn nearly uniform praise from across the board (with the exception, of course, of the parties negatively affected by it and their sycophants) including on this blog. Martin Lederman is indicative:

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…

I find it shocking to be writing these words, but I pretty much agree. However, there is one glaring issue that is not addressed in the decision that is critical to this greater discussion of power and privilege, and I predict that will prove unfortunate in the future. To wit, is it appropriate for the US Attorney, in this case Jeffrey Taylor of the DC District, upon specific command of the Attorney General, in this case the ever obstructing Mike Mukasey, to refuse to prosecute a duly constituted and valid on it’s face contempt citation referred by the United States Congress?

A whole lot of people, both expert and non, have already been asking "what happens next"? What happens when Miers, Bolten, Rove et al. either blow off their repeat summons, or give unprincipled refusals to answer proper examination by the Committee? Without a prior resolution of the propriety of the Mukasey/Taylor refusal to prosecute the properly referred contempt citation, they may well refuse again, thus creating further intractable delay. Future Administrations may try the same refusal. Bates was certainly aware of the Taylor/Mukasey refusal, it is cited numerous times in the decision (see, for instance, page 16 of the decision):

On February 28, 2008, Speaker of the House Nancy Pelosi certified the Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia. Id. ¶ 60. Pursuant to the terms of 2 U.S.C. §§ 192 and 194, Mr. Taylor was directed to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury. See 2 U.S.C. § 194. On that same day, Speaker Pelosi wrote to Attorney General Michael B. Mukasey. Pl.’s Stmt. of Facts ¶ 62. The Attorney General had previously indicated that he would not permit Mr. Taylor to bring the contempt citations before a grand jury, and Speaker Pelosi “urged him to reconsider his position.” Id. The next day, however, the Attorney General responded that because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, “the Department has determined that non-compliance . . . with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”

However, Bates gave no indication of the court’s opinion on this issue, much less rendering a determination. This was a question that should have been addressed in the Bates decision; why wasn’t it?

Is this the big chink in the armor of the surprisingly cogent Bates decision we all expected? Not as much as you think. Bates certainly could have addressed the issue, even if any conclusion was discretionary dicta, and I believe he should have. The real shortcoming here, however, resides with the HJC complaint in this matter; the Committee didn’t plead the issue. Sure would have been nice if they had; maybe the Judiciary Committee would see fit to explain why they did not.

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    • BayStateLibrul says:

      What I love about Beckett is his honesty

      “It was frustrating,” said Beckett. “Give up eight [expletive] runs – pretty frustrating. That’s what it is.”

      Can someone do a hex on Tampster Bay

  1. JohnLopresti says:

    I thought that was how the DC court opted to pushback, leaving to Conyers whether to ask Scotus a political question, which seems to be the administration’s denialist defense. Eisenhower did the same thing over the Huac affair, simply recording to file that whosoever of his cabinet officials agreed to appear to answer questions regarding the fictitious list of 200 commie employees of the executive namewise, would not have employment as of the very evening of the day on which that official appeared. Meanwhile, Ike deployed the AG to assist in the politics of delay on the Hill. The real difference with the present administration is public defiance and vacuous pronouncements, the just-a-piece-of-paper defense. I think the DC opinion strengthened HJC’s argument if they want to take it to Scotus, for the sake of institutional integrity preservation and redefinition.

  2. plunger says:

    That Secret Energy Task Force meeting was about far more than the nation’s energy needs. I’m sure that Cheney convinced Scalia to keep the meeting secret for “National Security Reasons.” Attendees included Ken Lay, and the documents included oil pipeline maps in Afghanistan and Iraq…BEFORE 9/11. This evidence would have been highly incriminating, revealing the plan that had been conceived for the balance of the Bush Presidency.

    Ken Lay’s co-conspirator status would have been clearly revealed, and it would have become very obvious why Lay and Cheney conspired to manipulate the California energy market in order to create a FAKE energy crisis BEFORE 9/11. The FAKE energy crisis was mass conditioning of the population to welcome the “Energy Experts” into the White House.

    Scalia is an accessory to all that transpired. He had no right to conceal the people’s business from public view. Had the American people been made aware of the planning that was then under way, they NEVER would have allowed Cheney to so bamboozle the public into a war based on a false premise, and would have been far less willing to accept at face value the government’s official conspiracy theory for what occurred on 9/11.

    Rewind the clock and think about how different the world would be today if their conspiracy had been revealed in early 2001.

  3. masaccio says:

    Maybe the HJC didn’t plead it because they chose to proceed with the declaratory judgment action, so it would have been difficult to put that issue into play?

    • bmaz says:

      But why wouldn’t the Taylor issue be appropriate for a dec judgment? In fact, that is the only way you could address the refusal as far as I can tell.

    • bmaz says:

      Here is how it appears to me, and this is kind of a superficial lay person type of analysis, because there are all kinds of twists, turns, nooks, crannies and the like in equitable relief pleading that exist below the surface and I certainly have not thoroughly researched all this out (and have no inclination to self inflict such pain either). With that caveat, I think there is an arguable distinction between the issue of whether the immunity privilege arguments are valid, which controls the question of whether the contempt finding is valid or not, and the issue of whether or not it is appropriate for the Attorney General to order the prosecutor with jurisdiction, the DC US Atty (Taylor) to refuse consideration of the question.

      Simply put, it is not as if Taylor declined prosecution in his exercise of prosecutorial discretion, he was ordered by a cabinet officer to not even consider the contempt on it’s merits. Was it proper to order a prosecutor with jurisdiction and an ethical duty of discretion to refuse/abandon his jurisdiction/discretion in the face of a duly certified, valid on it’s face, citation from Congress? And, at least to me, with the earlier caveats, this is a question that naturally is part and parcel of the facts and issues that were briefed. Read the factual basis as accepted and stated by the Court in Bates’ opinion at p. 15-17, and I think you will see what I mean. If Taylor had said back to Pelosi/HJC “I accept your citation and certification, and after a full staffing consideration by my office, I decline to prosecute this matter as an exercise of my prosecutorial discretion”, that would be one thing (bad decision, but at least a decision), but he was malevolently ordered not to even do that. I think that order was ripe and was should have at least been presented to the Bates court. It was not.

      • R.H. Green says:

        You may have covered what I wanted to know in my Q @ 12.

        With respect this “prosecutorial discretion”, is this a whimsical matter, or must such discretion be based in law? That is, is it “appealable” on some ground, (other than the inherent contempt route).

        With respect to the immunity, I gather you are saying that the validity of that argument is still unsettled law, and therefore the contempt citation may turn out to be for a noncrime. Is this an accurate read?

        • bmaz says:

          As far as the history you seek, it is fully contained in Bates’ opinion which is linked both in the post and at my @14; that will have everything you need I think.

          Your second question re: the prosecutorial discretion is a very good one. The Court has historically not found it appropriate to intrude on this issue of the executive’s prosecutorial discretion (see: US v. Shabazz (Bitzky)). However, when the executive is doing it from a position of conflict of interest and usurpation of the power of Congress, I would argue that is very distinguishable and appropriate for Court consideration.

          Your last question – No. I think that is completely settled. I never, ever, thought that there was such a thing as absolute immunity, even for the President, and sure as hell not for Miers, Bolten and Rove. That was a bad faith assertion in every regard; the White House ought to be sanctioned for making it.

          • R.H. Green says:

            In light of your “hurting head”, I thank you for your prompt reply. However, I’m still confused; perhaps I used inexact words in my questions. Instead of the word (if it is a word) “appealable”, I should have spoken of “recourse” for the Judiciary committee. Does the US Atty have to give a legal basis for his decision (which can be contested), or can he whimsically say, “I’m the decider here, an’ there’s nuthin’ you can do about it. Nyah, nyah, nyah”.

            Now I take it that Bates (at the Dist court level) has ruled that the basis for the claims of immunity does not (for now) stand, then the refusal to carry out the contempt citation (which I presume to be valid and defensable), is a failure to carry out the duties of the office, and is contempt in its own right, and even impeachable. Further, Mukasey’s interference amounts to obstruction and is also. That is, if this “prosecutorial discretion” has limits. Am I off track here?

            • bmaz says:

              Well, that is the question. And, in light of the fact that Courts normally just won’t go into questions of a prosecutor’s use of his discretion, and unlike the frivolous assertion on immunity, it is easy to se the AG/DOJ saying exactly what you are worried about “Na na it’s our decision and fuck you.” And, again normally that would be that. I would argue that his is not such a normal situation though, and this is one of the limits of prosecutorial discretion, and that what they are doing is obstructive. But it is a fair argument, and you can see it coming a mile a way, so why not go ahead and try to address it now? Bottom line, I don’t know the answer, that is why I wish HJC had put the issue before the court; so we could find out.

      • masaccio says:

        Interesting. I would really have liked to see someone take a whack at those cowards, win or lose.

      • Leen says:

        So this is the way the big boys dodge, twist, zig zag away from “equal justice under the law” No need to wonder why there is so much cynicism and anger directed towards our justice system from those who have had the full power of the law imposed upon them for non violent crimes.

        All the while those in power do the boogaloo around the justice system.

  4. Gerald says:

    bmaz,

    I am surprised that a lawyer like yourself would use such words as ”give unprincipled refusals to answer proper examination by the Committee?”

    But yes, I would expect that if somehow eventually those people do wind up in a legal hearing, to hear a lot of ”I don’t recall,” ”not certain,” ”I must have been out of the room or my attention was elsewhere,” ”I only remember the good(legal) parts not the bad(illegal) parts,” etc.

    Still overall I expect this to turn out to be a very dry hole that you are digging in.

    • masaccio says:

      Cynicism is fashionable, but if we keep making them lie and deny, decent repubs, of whom there are plenty, will catch on, and lose faith in their group. I hope.

      • readerOfTeaLeaves says:

        Ditto massaccio @8; and FWIW, plenty of R’s have already caught on it seems to be. The GOP in each instance (Miers, Bolton, etc) seems bent upon insisting that everyone believe the ‘reality that they’ve created’. Thanks, but I’m not especially fond of walking blindly off cliffs.

        bmaz, thanks for the explanation of Bates’s legal decision in this case. It makes a lot more sense now, and it’s helpful to sort out where the ‘chink’ was left in the armor.

        But again, how many Americans are going to believe that Mukasey is really protecting ‘Executive Privilege’? The hard-core base may buy it, but $4/gal gas plus a lousy economy has an interesting effect on the ways in which people tend to process political information.

        FWIW, it’s richly ironic to me that the whole ‘protecting our sources’/First Amendment issues that came out of Watergate — which Rove, Libby, Cheney, Bush, et al have used so well to manipulate the media — was basically turned inside out by Judith Miller’s bogus use of it. And it was a GOP-appointed judge who overturned it.

        It will be interesting to see how ‘Executive Privilege’ holds up under the pressure of the number of criminals and crimes associated with Bu$hCheney. Shorter: I wonder whether ‘Exec Privilege’ holds pretty well when there’s a moderate amount of malfeasance, but breaks under the weight of Abramoff, Siegelman, USAG firings… that’s an awful lot of accumulated filth putting incredible pressure on that ‘Exec Privilege’ tradition. Just thinking of it from the viewpoint of physics, it simply doesn’t seem credible that thread can hold the weight of so much obscene criminal conduct. But we shall see….

  5. Rayne says:

    What bugs me at this point is that we’re continually given all these excuses for their overreach, have been since 9/11 (and probably before that with the Energy Task Force and other similar “projects”).

    What’s good for the goose is good for the gander.

    Congress should simply frogmarch these assholes to the basement, and argue their own rights to any perceived overreach as an equal branch of government.

    No more knives to gun fights; if they’ve whipped out a weapon, match it, caliber for caliber. Ask forgiveness later, which would be more than this White House has done or will ever do.

  6. R.H. Green says:

    Could someone point me to the appropriate history of this matter? It seems that letters of request were sent regarding the production of documents and testimony, which were declined. Subsequently a subpoena was issued demanding such production under Article I authority? This too was denied. Only then were contempt citations issued, and if congress has legitimate investigative authority, such refusal to comply would seem indeed to be a crime. I must have missed something.

  7. MadDog says:

    Excellent question bmaz!

    I too have wondered why on earth the HJC hasn’t asked the court to weigh in and issue an order demanding that Mumbles Mukasey enforce the HJC subpoena.

    I realize that the Bates opinion makes more than mention of a political aspect of the situation, as in “Can’t you Article I and Article II kids play together in peace?”, but to be sure, this has gone far past just “political” and has wandered dangerously into the traffic of complete and utter criminal contempt on the part of the Administration.

    Perhaps the HJC legal eagles are waiting for Judge Bates to deny the Administration’s requested stay before proceeding to asking him to order compliance with the HJC subpoenas, but it sure seems like more comity by Congress than is justified by the Administration’s actions.

    I wonder if Grannie Nancy “Don’t ruffle their feathers” Pelosi has dipped her big toe into these waters with another admonition of “No fighting children!”

    Color me unsurprised if she did.

  8. spoonful says:

    That makes two poorly drafted complaints this past week – the Plame complaint was dismissed where it appears a more thoroughly pleaded instrument may have survived.

    • bmaz says:

      Unlike in Plame, it is not a fatal flaw that is incapable of being subsequently addressed if necessary; rather the concern is that it be exploited by the White House and more delay is occasioned in having to go back to the court for resolution. It is possible that Bates would have declined to consider the issue even had it been pled, but my inclination is that he would have in light of the conclusive nature of his ruling on the Administration’s attempted assertion of privilege/immunity. I think that I would be inclined to have include it just to test the reaction by the adversary and court even if you got no more than that out of it.

  9. JohnLopresti says:

    Some of the early research as the lower chamber prepared to contribute oversight of the turbifaction of DoJ yielded a helpful, if compact, study at CRS 60pp first available in autumn last year, a copy of which is at fas, and, I am sure, several readers hereabouts have reviewed it. I know I tended to leave HJC’s complaint on one end of perhaps the same credenza as the one on which, respectively, figuratively, Miers, Bolton, and Rove, reposited their subpoenas. From that trailblazing first sally at CRS, as a fn at the first page of the Concluding [email protected], the Senate’s ire in re Sherman Antitrust law concoction and nepotistic conflicts ensharing DoJ’s leadership in a laissez faire unconcern with vigorous prosecution of congresses clearly enunciated will with respect to that law and homologous propensity to ignore the Senate’s authority to request documents for investigation of DoJ’s lassitude in said matter, one finds as fn.130 notation which has a typographical error citing the version Scotus processed inaccurately; the appropriate cite is McGrain v. Daugherty 273 US 135. So that is the bland way to spend a Sunday afternoon, one supposes. Maybe it is because some of my early forensic work involved the charmingly hostile rhetoric surrounding Sherman Antitrust as a turning point in modern postindustrialist history that I find the case lucid and germane. The parched dryness of Ashcroft’s vanguard work to defang torts is a similar project, though related to creating a shield for the 1×2×6 matter of universal disrepute, currently located somewhat closer than that dust laden credenza. The CRS study is readable, though.

  10. Xenos says:

    BMAZ – you explained at some length, a few months ago, why a writ of mandamus is, as a matter of practicality, a non-starter. While I am no expert, I have never heard, nor can I find, an example of a prosecutor, in the exercise of his discretion thereby choosing not to prosecute, and later finding himself being indicted for obstruction of justice.

    With no prospect of impeachment this risk of being considered a part of the criminal conspiracy may be the only incentive for Taylor to convene a grand jury — keeping his own nose clean. While I like the prospect of successfully prosecuting Taylor under an Obama presidency, that could create a precedent that could be very damaging down the road, I fear.

    I guess this is not really in the form of a question. But I wonder if you know of anyone thinking through this issue.

    • bmaz says:

      Who said anything about prosecuting Taylor? I sure didn’t; I simply think he should be prompted by the court to do his job. The lawsuit brought by HJC that is at issue in this post, and is the action at issue in this post, is civil in nature.

  11. PetePierce says:

    I expected Bates to simply turn them down with a desultory opinion so I was even more wrong in my guess.

    The Taylor refusal is an excellent point Bmaz has raised, I believe because there are always instances (although not nearly as many as when the defense is ordered to do something) when a federal court can order DOJ attorneys to do something, and “my boss doesn’t like it or want to go that way” is hardly a defense.

    It looks like HJC attorneys overlooked addressing this, and while there may be an explanation by them, I’m not sure what it could be.

    As we all know, the contempt citations expire when this administration expires (I like typing that, even though we all know as well that so much of what they’ve done is not going to go away or “be corrected” for a long, long time.

    They can be revived.

    And what, if elected, an Obama administration could try to do to undo much of the damage to the Constitution and the legal system from this administraiton will be the subject of many books to come.

    How to avoid the “you didn’t raise the issue in the trial court below problem” that now looms on Taylor and forcing DOJ to comply with 2 U.S.C. § 194:

    But what to do about the Taylor obstruction problem and how not to run into the dismissal of it by DC Court of Appeals that the issue wasn’t raised in the trial court before appeal? In order to get Bates to rule on this, and keep it out of the realm of dicta, the only way I can think of for HJC’s attorneys to proceed, and it’s important that the do, is to motion Bates to order Taylor to do what the law, 2 U.S.C. § 194, says he is supposed to do that he is not doing–to prosecute the contempt.I think that this could be addressed more than one way.

    HJC could get Bates to order it by amending their reply brief that MadDog brought to our attention and addressing it there. Bates could order them to do that in response, and importantly they would not run into the problem (and I hate typing this word–later–on appeal at DC CA because the government is quick to argue that issue sometimes even when the transcript shows the issue was raised or objected to at trial.

    I think if they try to motion the DC CA on this later, they are going to get slammed by the government that it wasn’t raised in the court below.

    It is always possible, if HJC attorneys don’t raise it with Bates now, and I think they are foolish not to that the panel could ask for what’s called a “minute order” at oral argument (or shortly after) or in other words could ask for additional briefing on the issue sua sponte when goaded by this in oral argument. But that’s going to draw an immediate objection in the responsive motion by the gov that it was not raised in the court below, and this type of briefing requested by the panel would be extraordinarily rare, and I’m confident that won’t happen.

    • PetePierce says:

      HJC attorneys could amend their current reply brief or they could supplement it–no difference, but the point is that they get Bates to do this in the trial court, rather than leave themselves open to attack that they didn’t get it done in the trial court later.

    • rincewind says:

      and @ 42:

      and at the time the Republicans had the majority of votes on SJC 10-9 so he would have been confirmed anyway.

      You’ve said this before and it’s still not true. The composition of the committee on Nov 6 2007 was 10 Dems, 9 Repugs: Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. Without DiFi and Schumer, Mukasey was a dead duck.

      BTW, as Leen @ 46 quoting John Dean quoting Bates makes clear, this @ 25:

      As we all know, the contempt citations expire when this administration expires

      is also not true; the subpoenas expire when the 110th adjourns, which can’t be any later than Jan 3 when the 11th is sworn in — not on Jan 20 when “this administration expires”.

      • PetePierce says:

        As to the date the subpoenas expire–the little techinicality you tweaked, if true makes not a zip of difference. But the Bates opinion is going to the D.C. Court of Appeals whatever Bates does.

        And the significant point is, that if they don’t move Bates though a new motion or a supplement to their reply now in the trial court, the government will hit them smack accross the head that they didn’t raise it in the trial court if they try to raise the issue later, and it’s an important issue.

        The clock is being run out.

        As to the SJC vote, it was 11-8 for Mukasey, and had Schumer and Feinstein voted against him, it would have been 10-9. So you’re correct on the vote, but I’ve also said repeatedly that Schumer and Feinstein have cast many pro-Bush votes, and that was one of their dumbest.

        Before the vote, I we Ent into detail about Mkasey’s conduct on the SDNY bench, and some of his opinions, and I said to confirm him would be like confirming Sylvio Dante–I used those exact words and I was proven completely correct.

        Enjoy Mukasey as your attorney general, and every one of your communications being wiretapped.

        Enjoy Main Justice in the shitter where it is.

        Enjoy OLC in the shitter where it is.

        Enjoy the wrecking crew that is your government.

      • PetePierce says:

        the subpoenas expire when the 110th adjourns, which can’t be any later than Jan 3 when the 11th is sworn in — not on Jan 20 when “this administration expires”.

        And this nugget which is a difference of 17 days which emphasizes still more my point about running out the clock changes the briefing and motion strategy exaclty how in your eyes ricewind? You would do what diffently as to legal strategy given that terrific nugget of info? I’m sure you had a point there somewhere.

        I might add that after Condi, and imaginary Sec Def LindsayGraham, and imaginary Sec State Joey the Lieberman went to Georgia (as did future VP Candidate Joe Biden–can the airhead media think of anything to say about Biden other than he talks to much?–how about the airheadedness of the Barbies on CNN–who wouldn’t know a cert. vote from a cert. mint?) that Russia has not moved, and they have instead entrenched themselves and dug in with short range missle launchers in Ossetia.

        Respect for the US abroad is also very much in the shitter.

        Missile Launchers Tighten Russia’s Grip on Georgia

      • PetePierce says:

        To make it clear, other than the aspect of running the clock, the Bates decision is going to be litigated all the way into the DC Circuit, and their will be a cert. petition in all probability–so when the 110th expires won’t really matter as to the litigation which will expand far into the Obama-Biden administration. While the contempt citations expire, this litigation will not when they do, and it’s going for a good number of months. But Bmaz was sharp to point out the Taylor aspect that could be pushed by a motion or a supplemental brief to the latest one now before Bates by HJC. It’s an issue that should be litigated if they’re smart.

        As to the vote for Mukasey, as you know there were two. You are right; if SJC had killed it, that would have solved a lot of problems and no Mukasey.

        The Senate also had to vote on it once SJC got it to the floor, and Leen has it here.

  12. Xenos says:

    Maybe it is too much of a stretch – a civil contempt issued in the course of investigating a criminal conspiracy (corruption, obstruction of justice) is not enforced by a prosecutor for whom the prosecution is not really discretionary. This same prosecutor has knowledge of the the crimes committed (including perjury by an Attorney General), and in spite of knowing this, does not prosecute… Does this not put Taylor within the bounds of an expanding criminal conspiracy?

    Maybe it doesn’t. This is a level of corruption that I don’t think we have seen before, except maybe in the Nixon administration.

  13. R.H. Green says:

    “Who said anything about prosecuting Taylor?” Xenos may have been reacting to me. Only I didn’t say “prosecute”; I said “impeach”, the process for the forcible removal of any civil officer of the US govt, including US attorneys. I realize we are a long ways from the House leadership allowing such frivolity, but it could be interesting to have Taylor supoened to explain his discretionary refusal to address the contempt citation. Who would serve such a supoena, & what would follow when it is ignored? And more to the point, what would happen if he were cited for contempt, if not for failing to appear, but for not bringing charges against Miers et al?

    • PetePierce says:

      I think they would not get very far having Taylor explain that Mukasey doesn’t want him to execute the contempt. The way to do it with teeth is simply to motion Bates to do it by supplementing the pleding they already have before him and getting Bates to order them to do it.

      Hearings while interesting also, from Conyers, Waxman, and Leahy with various DOJ personnel have produced little in the way of results, and a lot in the way of vague contemptuous answers that they can’t do a helluva lot about.

      • R.H. Green says:

        I agree that the hearings approach has been disappointing, but if they are to grow some spine (or other anatomical metaphorical parts), the’re going to have to exercise. Everytime they get stiffed, the need to assert Article I authority gets greater. If such assertion doesn’t begin before this administration is out, a dangerous precedent of capitulation to the executive will become accepted practice. I’m reminded of how Julius Ceasar mocked the Roman seanate for handing him every increase in power he asked for. The more he asked, the more they gave, til finally he mocked them for their irrelevance.

        Which reminds me, what hope does anyone have that court orders mean any more to the executive branch than do supoenas from the legislature?

  14. Leen says:

    Bmaz what an incredibly informative post. Thanks
    What will happen next? ask a peasant. What will happen next? Congressional contempt charges…send out the Sergeant of Arms. Arrest their asses. Or watch the American people faith’s in our congress and our Justice system sink even lower. How low can it go?

    For the last few days I have been handing out tickets in both Boulder and Denver to Obama’s speech a week from this coming Thursday at Invesco field in Denver. It’s not to late to sign up on the wait list for these tickets at the Obama web site. Quite a few folks have not picked up their credentialed tickets and these tickets will be up for grabs after Wednesday.

    Some good news. In Denver while I was working at one of the Dems offices I found myself talking with three very well dressed women who were also volunteering. Com to find out they all had jumped off the Republicans bus and were voting for Obama. I asked how many other Republicans that they knew were doing the same. They responded that they knew “quite a few”

  15. Leen says:

    bmaz is it really Bates responsibility to determine what happens next if they continue to ignore the subpoenas?

  16. BayStateLibrul says:

    Morning Glory!
    Crossing our fingers…
    Bates looks good now, but will he follow through?
    Let’s hope that Bates rejects the stay, and kicks arse to Father Time.
    Whattabout Waxman’s brew-haha with Mukasey, which resides in political limbo? How does that fit in with his decision?

    • PetePierce says:

      Waxman/Conyers are going to have little or no impact on Mukasey who is completing his mission well which is to make sure the DOJ is completely obstructive and protects every one of the illegal enterprises Bush’s “wrecking crew” has in place.

      It’s called by many names, but back in the day it was called the Four Corners or North Carolina Offense until the shot clock came into being in college and pro but not high school.

      Mukasey, the point guard simply dribbles to the middle of the box and dishes out to one of the players like Glenn Fine at the corner or Steven Bradbury at the other corner.

      Again, did I say again again, the way to get an order to force Jeff Taylor to execute his duty under the statute, is to get an order now from Bates that he do so by supplementing the current reply brief, or submitting a motion to Bates while this thing is still in Bates court before it goes to the DC CA and believe me, it will.

  17. Leen says:

    “Mukasey, the point guard simply dribbles to the middle of the box and dishes out to one of the players”

    Schumer and Feinstein jumped the Dems ship = the Bush administration gets Mukasey…the rule of law…Justice..our nation gets “dribbles”

    Pathetic.

    • PetePierce says:

      Schumer and Feinstein have made a lot of ridiculous votes, and at the time the Republicans had the majority of votes on SJC 10-9 so he would have been confirmed anyway.

      But an integral part of what Thomas Frank calls The Wrecking Crew were the facilitators, people like Princess Grandmamam Pelossi who compromised this government and put it in the trash can.

      Vote her out if you’re in Cal; anything is better.

      • Leen says:

        “riduculous votes” their votes on Mukasey were far more than “ridiculous”

        And because they had the votes for Mukasey does not take Schumer and Feinstein off of the accountability hook

  18. klynn says:

    Great post bmaz.

    Boy, between your post and WO’s what a way to start the week. Super efforts and very much appreciated.

  19. Leen says:

    Bmaz from your past comments in reference to John Dean I know you are not a fan. But you seem to be on the same wave length. Had not been over to John Dean Findlaw for a while but here he is on August 8th writing an article about Bates decision.

    http://writ.news.findlaw.com/dean/20080808.html

    When the random selection system used by the U.S. District Court for the District of Columbia sent the case of Committee on the Judiciary, U.S. House of Representatives v. Harriet Miers, et al to the courtroom of Judge John D. Bates, the White House was no doubt thrilled. Earlier, Judge Bates had sided with Vice President Cheney’s refusal to produce documents requested by the Comptroller General.

    However, on July 31, when Judge Bates handed down his decision, he ruled in favor of the Judiciary Committee, not the White House, and the thrill was surely gone. The White House had pushed the law beyond its boundaries, and this time, the Judge pulled them up short.
    Click here to find out more!

    The Fight over Subpoenas to the White House Regarding the U.S. Attorney Firings

    • bmaz says:

      Actually, I have been a very big admirer of John Dean for a very long time. He was flat out full of baloney on his FISA deal and I said so (Dean himself, if you read between his followup lines carefully, realized it and tried to back up a bit), but that does not change my opinion of him. He is a valuable guy. Just not on the Obama FISA crap.

      • Leen says:

        I get it. Misunderstood your response to Dean’s Fisa opinion as full on attitude towards Dean. Sorry

        http://writ.news.findlaw.com/dean/20080808.html

        John Dean

        ” After Judge Bates had smacked down argument after argument presented by the Executive Branch, one matter did give him pause. “The 110th Congress expires on January 3, 2009. Unlike the Senate, the House is not a continuing body,” he noted. Thus, when Congress adjourns, so too will the subpoenas for the testimony of Miers and Bolten (not to mention for the testimony of Karl Rove, whose contempt citation is pending before the House for the same reasons the contempt citations of Miers and Bolton are).

        Judge Bates addressed the question of mootness head on: “On the Committee’s side, the entire House — and thus any outstanding subpoenas — will lapse on January 3, 2009, and the basis of this lawsuit will cease to exist. To be sure, the incoming House of Representatives may elect to re-issue similar subpoenas, but that remains speculative at this juncture. Similarly, the incoming executive administration may decline to pursue the assertions of immunity and executive privilege that form the foundation of this dispute.” Again, note the tone Judge Bates employs in his discussion of the matter of Bush’s leaving office and still claiming privilege: “A former President may still assert executive privilege, but the claim necessarily has less force, particularly when the sitting President does not support the claim of privilege.

        Judge Bates continues, “As with the incoming Congress, there is no way to predict whether the new administration will support the assertions of privilege made in this case. There is also the likelihood of appeal of this decision and, given the significance of the issues involved, a stay pending appeal is at least possible. Thus, although proceedings before this Court could be concluded prior to January 2009, any appeals process may not run its course before that date. At that point, the case would arguably become moot. Nevertheless, the Court concludes that this concern does not counsel against entertaining this case.” Accordingly, Bates issued the decision ruling against Bush’s aides.

        If I were to wager, I would say that President Bush will now stall. The White House will appeal, and the issue will become moot. We will get a clue about what the Democrats will do when the House returns from its summer recess and addresses Karl Rove’s pending contempt citation. Given her history, Speaker Pelosi would no doubt like all this to go away. Remarkably, she has not shown much concern about the Executive Branch’s denigrating the Legislative Branch.

        Thus, Pelosi will likely go through the motions but wait to see what happens in November. If McCain is elected, she might do something before her caucus takes away her speakership; if Obama is elected, she will say, “Let’s get all this behind us so that the Congress will not be fooling around with Bush once the new president arrives.” That’s a shame – for the Bush Administration should be held accountable so that the Department of Justice’s integrity is never again compromised with such shamelessly political firings. Yet it seems that Speaker Pelosi would rather be loved than respected, and will sacrifice long-term institutional concerns for present-day popularity.

        ##Dean sure gives Pelosi a pounding.

  20. CTMET says:

    Dear Mr. Mukasey and Mr. Taylor.

    Do your job and enforce the contempt citations or be impeached.

    Love,

    John Conyers.

  21. Leen says:

    The senate vote for Mukasey

    http://www.senate.gov/legislat…..vote=00407

    I really did not get that Mukasey vote. I thought it was Schumer and Feinstein who flipped that vote.

    Why were the Democrat to chicken shit to fight Mukasey’s nomination. I did not know that Bayh, Carper, Feinstein,Landreiu, Nelson and Schumer all brought us Mukasey.

    Clinton, OBama, Biden, Dodd all too chicken shit to take a solid stance.

    If all of the Republicans and Dems would have voted it would have been a tie. With Lieberman being left with more of his dirty laundry hanging out in full view.

    Do not understand why the Dems did not stand and fight for accountability at this point in time. Will never work for them again the way I have in so many elections.

    How can they possibly wonder why so many Americans have little to no faith in them?

    • Leen says:

      All of the Dems who voted for Mukasey, did not vote were chicken shits. These Democrats sold Justice and Accountability down the pike.

      Shame Shame on Bayh, Carper, Feinstein, Landreiu, Nelson, Schumer, Dodd, Biden, Clinton, Obama for bringing us Mukasey. Why not stand and fight for Justice when they had a chance?