Denied! Bates Refuses to Stay Order in Miers/Bolten Suit

Judge Bates isn’t helping BushCo sustain their USA purge cover-up and stall. Today, he denied the White House’s motion for a stay of his earlier order pending appeal. He got a bit snarky in his opinion denying the stay–I imagine David Addington is having fits right now.

The Executive has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question “so serious, substantial, difficult and doubtful,” id., as to warrant suspending the effect of the July 31st Order pending appeal. To begin with, the Executive devotes almost the entirety of its briefing on this prong to arguing that the Court’s Order is “susceptible to serious debate” concerning the threshold decisions relating to the Committee’s standing and cause of action. See Defs.’ Mot. at 5-6. But even assuming that the Executive’s proposition were correct — which it is not — its reliance upon that point is misplaced. The D.C. Circuit has explained that the stay pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself, see Philip Morris, 314 F.3d at 617. Here, however, the denial of the Executive’s motion to dismiss is not presently subject to appeal because it is not a final order.


The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important — primarily because it involves the relationship of the political branches — does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee. [my emphasis]

Bates goes on at some length, calling out the transparent BS in BushCo’s arguments.

Kagro X and I chatted briefly about what this means–I expect him to do a post on how, absent some enforcement mechanism, this doesn’t exactly guarantee that Miers will show before HJC anytime soon. (Gosh, I’ve never heard him make that argument before.)

But reading the opinion, I get the sense that the real tension concerns not Harriet Miers, who after all (as Bates repeatedly reminds the White House) can invoke privilege to individual questions, but Rove. Rove, after all, has not claimed executive privliege, and he’d have a hard time doing so. And since Rove couldn’t even fully answer a set of questions gerry-rigged to get him out of testifying, I can imagine he’d like to avoid showing up before HJC to answer some real questions.

As I said, Kagro X (whose skepticism usually serves him well in these situations) remains dubious that this will lead to testimony anytime soon. But who knows? Maybe things will get interesting next month in HJC.

    • behindthefall says:

      And actually, it is “jury-rigged”; it has an origin in sailing terminology, as in “jury-mast”, an improvised mast.

    • trianarael says:

      Although their etymologies are obscure and their meanings overlap, these are two distinct expressions. Something poorly built is “jerry-built.” Something rigged up temporarily in a makeshift manner with materials at hand, often in an ingenious manner, is “jury-rigged.” “Jerry-built” always has a negative connotation, whereas one can be impressed by the cleverness of a jury-rigged solution. Many people cross-pollinate these two expressions and mistakenly say “jerry-rigged” or “jury-built.”

  1. PetePierce says:

    Marcy I hope you’re having the best possible time in Denver and getting to do everything you want and your trip before was great.

    What I think it means is that the goverment will immediately make an emergency motion to the D.C. Circuit for a stay and argue pretty much the same argument (and part of it was “it’s in the best interest of the security of the American people that they not testify”–see it’s the soookoooority angle always–kind of like McCain playing the POW card as his answer to every issue).

    You can file an emergency motion or any motion in the D.C. Circuit electronically 24X7.

    I know Miers and Bolten don’t want to show. If they are dragged before HJC I think you can expect them to take the 5th (that’s a popcorn moment for me) or if they “answered” questions some of the exact same tone of obfuscation that you got when Fredo Gozales testified before SJC.

  2. skdadl says:

    I was puzzling over the bits of Bates’s decision quoted over at TPM. At the same time that he is denying the request for a stay pending appeal, Bates raises again his desire for a negotiated solution and says that Miers is not compelled to appear at any particular date. I cannot put those two parts of the decision together, unless it’s a question of majorly differing time-frames?

    • PetePierce says:

      They would never appear without more delay. And negotiations have failed previously. WH Counse Fred Fielding always insists on a ridiclous private hearing, with no transcript.

      What will happen is that the government will file a motion–I’d make it an emergency motion–with the D.C. Circuit either appealing Bates’ denial order or just a straight up motion that is the repeat of Bates’ motion.

      The time table in a federal civil case is that if the government is a party to the case

      1) Either party has 60 days to appeal the order.
      2) If either party wants an extention of that 60 days they can move for an extension of 30 days before that 60 days expires.

      I certainly expect the government to appeal knowing now that they have exhausted Bates, they have a chorus line of 21 Federalist Society martinets ready to help their cause in the D.C. Circuit.

      As Kagro X points out over at DKos:

      Bates’ opinion, while ostensibly dealing with the Miers and Bolten cases, was clearly written with the Karl Rove contempt freshly in mind as well.

      Without the stay in place, Miers and Bolten are under court order to appear before the House Judiciary Committee for questioning in connection with the dismissals of the U.S. Attorneys. No such order is currently in place for Rove, but Bates was clear in his reasoning that Rove would have even less grounds for any refusal to appear than Miers and Bolten ever did, since the White House has never actually asserted any executive privilege claims with respect to Rove’s testimony. Miers and Bolten, though, would technically still be in compliance with the order if they agreed to appear, but asserted the same claims of executive privilege in person that they did in letters from their attorneys before. Rove, if he continues to refuse to appear, would undoubtedly find himself subject to a court order to appear. But he’s not under one now

      Kagro raises the question what if Miers and Bolten defy Bates’ order. That’s not going to happen before this issue percolates to the D.C. Circuit and then if they are turned down by the D.C. Circuit panel they will ask for an en banc hearing if the D.C. Circuit (being a very Bush oriented machine doesn’t take it en banc sua sponte.

      At that point the gov would file a cert. petition with the Supreme Court.

      In other words, I expect the gov attorneys to use the appellate process and if they do we’re talking as much as two years. Yes the subpoena expires when the 11th Congress convenes on January 3, 2009 but should the government play the appellate game, the appeal would not be moot.

      And I hear there is some activity afoot in the U.S. to elect a new President, but Chairman Conyers and most of his committee would still be in place and they can certainly initate another subpoena, and it has already been litigated in the District Court at least.

      This is the way I think the scenario will play out, unless Miers and Bolten show up and refuse to answer questions or give nonsense answers.

      • ekhornbeck says:

        My my.

        That was exceptionally hostile.

        How about clicking every link?

        As mine clearly shows it is “jury rigged” and not “jerry rigged”. I do read, I don’t necessarily call people out.

        You could look it up, except you didn’t.

        And who cares about extra comments anyway? It’s a sign of activity.

  3. scribe says:

    On enforcing the subpoenas – IIRC, the subject of the suit was whether the subpoena was enforceable through the House bringing its own suit when the AG refused to comply with the statute requiring him to proceed with a contempt case.

    That seems to be pretty well established now – the Executive is not immune to compulsory process in the form of a subpoena and Congress can get its own court order saying so, if the AG won’t enforce the law.

    So far so good.

    The next step to take, for Congress, would be to get an order from the Court (some states call them a “order to enforce litigant’s rights” or an “order holding [witness X] in contempt”.) allowing Congress to go out and, with the aid of the Court’s own officers, compel the presence and testimony of the contemnor witnesses. Generally speaking, the order would recite Witness X has been subpoenaed, failed and refused to appear, been adjudged in contempt, and now the Court compels their attendance and testimony at a date and time certain. (Thus, Bates’ mention of not compelled to appear at any particular date – the date on the subpoena has passed, unextended.) That means, the litigant (Congress) would make another motion, this time for an order to compel appearance and testimony, to be served and enforced by the US Marshals’ Service. Remember, the Marshal’s Service works for and is a part of the Court – not the Executive – and their job is serving and enforcing warrants (”executing” warrants, actually), court orders, and similar process (papers) on people reluctant to come in voluntarily. That, and moving prisoners from custody to court and back.

    So, after Congress gets another order, you get to see guys and gals who have nicely-framed posters of Tommy Lee Jones and “Cahill, US Marshal” hanging on the walls of their office go out in their raid clothes to haul people in.

    Given the time frames for filing and deciding motions, I expect none of this will get done before the election.

    • PetePierce says:

      In the middle of all this, the government has 60 days to appeal Bates’ order, and within the 60 the government can motion for an extention of their time to appeal.

      And none of this has any impact on Conyers’ refusal thus far to invoke inherent contempt and throw their asses in a room, although the government would quickly argue (if they appealed and I can’t see why they wouldn’t) that they have a pending appeal in the D.C. Circuit.

      • scribe says:

        You’re forgetting that Bates explicitly said this is not an appealable final order, and a denial of a 12(b)(6) motion to dismiss – which is what this was – is not properly the subject of an interlocutory appeal.

        The immunity argument – which conceivably could be an appropriate avenue to an interlocutory appeal – fails of its own weight, because Harlow v. Fitzgerald says explicitly that presidential aides do not have absolute immunity, while Bushco claims they do. The only way for the Circuit to proceed would be to contravene Supreme Court precedent (Harlow), which they are pretty unlikely to do.

        The denial of a motion to dismiss being appealable on the basis of immunity only comes up when the immunity is well-established and the District Court got its decision denying immunity really, really wrong. That does not obtain here.

        • bmaz says:

          That is right. And if they were really in a hurry to get to the CCA, they could have addressed this through devices to make the matter final and appealable. Clearly, that does not comport with the desire for delay.

            • bmaz says:

              Yeah, well, they are going to have to do something to be in an appealable posture before they can go there; that is Bates’ point. To date, they have not.

              • PetePierce says:

                I don’t know how this is going to play out from here. We will all be watching. There is a lot of discussion about the D.C. Circuit on p. 8 of the memo opinion, and in the footnotes on precedents from the D.C. Circuit.

                I haven’t dug up the separate order to read, but I bet it’s short and sweet.

                My guess is that the government will try to delay Miers and Bolten’s appearance through some appellate maneuevers however they couch them short of outright defiance.

        • PetePierce says:

          That’s an argument for the DC CA to decide is what the government would say to you and will probably say by appealing to the D.C. Ca.

          And they can appeal any claim that Bates made that it isn’t an appealable order, and I would be fully willing to bet that they will.

        • PetePierce says:

          Bates anticipates on p. 13 of his memorandum opinion that however he ruled, either party would go to the D.C. Circuit and they will.

  4. ezdidit says:

    Idle speculation: This will be dragged into the HJC, Rove will testify in late September that he cannot recall anything on most issues, he will offer nothing substantial, and he will ask that he be allowed to amend the record within 30 days. Thereupon, Congress will adjourn for the elections, and there will remain about 60 days after for BushCo to vacate the WH. Nothing will come out of this….nothing at all.The Dems have left it all too late for any prosecution whatsoever…by design.

    I can only hope and pray that the larger crimes against humanity of Bush Cheney that they perpetrated with absolute impunity will be prosecuted by other international courts that are immune from political retribution within the U.S. But I’m afraid that the fix is in on this score as well.

  5. ekhornbeck says:

    KagroX’s piece-

    >White House loses on contempt case. Again.

    “What will Bates do if his order is defied? And how much patience will he have with continued gamesmanship — e.g., an appearance before the committee that nonetheless produces questionable claims of executive privilege, or the entirely ridiculous “absolute immunity” claims Rove has made? Given that Bates was clearly factoring in the time limitations of Congressional subpoenas in his earlier opinion, he’ll have to come down on Miers/Bolten/Rove like a ton of bricks if he wants to stay true to his ruling.

    We’ll see.”

    • PetePierce says:

      I can’t see any defiance of the order happening when the government has shown every indication they would appeal to the D.C. Circuit in cases like this, and just about any other case they ever defend.

      • ekhornbeck says:

        Well, I agree.

        My point was to provide a link to the KagroX piece and convey his conclusions.

        I’m sorry I didn’t notice the blockquote button that might have made that clear.

        • PetePierce says:

          I appreciate that and your linking, and there are some great ideas and writing at Kos, and Kagro is always interesting. But actually, all that Bates order and memo opinion requires of Miers and Bolten is that they show up and with each and every question state they are (however egregiously wrong and stupidly frankly) invoking privilege–and since they have the Executive Behind them they will invoke privileges that the opinion says they can’t.

          I personally expect DOJ to appeal Bates’ assertion this isn’t an appealable order. I say this because I know how the appellate teams work at Main Justice, and particularly how they work when they think their is a clash between two branches of government and they can make new law.

    • Peterr says:

      I’d say that Bates has made a couple of things pretty clear.

      1) He wishes the Executive and the Legislative branches would act like grownups instead of spoiled children, and settle this without having the courts step in.

      2) He has little patience for openended, ill-defined, and frankly monarchical claims of immunity by the Executive.

      Put these two things together, and any increased whining and delaying activities by the executive will only serve to make him more exasperated with BushCo.

      Addington is indeed having fits, trying to figure out just how slowly to drag things out without pushing Bates over the edge. If Bates goes from impatient to angry, it’s not going to be pretty.

  6. Citizen92 says:

    “Jerry” in World War II (UK slang) referred to the Germans.

    ‘Jerry-rigged’ would be fine if you were calling the minority’s “questionnaire” to Rove Nazi-esque.

    • yonodeler says:

      Origins and distinctions of meaning of -rig terms get muddled, as written about here. (Here are results for jerry-rig, for jury-rig, and for rig.) And there’s a -rig term having a pre-rig word that, in many instances of usage, would be considered racist by most readers or hearers. I find that rig and its forms suffice with some context.

  7. bmaz says:

    Appears to me that Bates has moved the ball in the desired direction, but not that far. Conyers should notice these folks up immediately for an appearance, if he wants to waste time “negotiating” fine, speed the negotiations up by have a timeframe in the form of mandatory appearance dates. There is not much else Congress can do, just keep the ball rolling as fast as possible. Above and beyond that, Kagro is right:

    Then we face the question that has always been at the bottom of this issue: can Article III force Article II to appear before Article I? Or more specifically, can Article III order Article II to arrest itself and bring it before Article I?

    What will Bates do if his order is defied? And how much patience will he have with continued gamesmanship — e.g., an appearance before the committee that nonetheless produces questionable claims of executive privilege, or the entirely ridiculous “absolute immunity” claims Rove has made? Given that Bates was clearly factoring in the time limitations of Congressional subpoenas in his earlier opinion, he’ll have to come down on Miers/Bolten/Rove like a ton of bricks if he wants to stay true to his ruling.

    We’ll see.

    Which leads me back to my earlier question of why the HJC didn’t also plead the question of whether it is:

    …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?

    And, yes, I remember the arguments propounded against my position in the original post on this. I remain unpersuaded and still think it was an error not to include this. Time is wasting.

    • PetePierce says:

      You have been raising an excellent point on Taylor. They absolutely could have supplemented in their last reply to Bates on this issue and moved to force Taylor to execute and it is an avenue they should have explored.

  8. Mary says:

    13 – I don’t think, based on Bates interpretation, they do necessarily have 60 days.

    He points out that the case posture right now is that he is denying Gov’s Motion to Dismiss and he is pointing out that a) this is not a final order and so it is not appealable (absent interlocutory certification) and b) he ain’t certifying for interlocutory.

    I’m not sure they won’t try to come up with some way to go to the appellate court anyway, using qualified immunity decisions and saying [them saying, not me saying] it is clear as a matter of law that the Dist Ct erred in refusing to certify for interlocutory bc of the jurisdiction issues raised by qualif immun cases and the S Ct’s determinations that irreparable harm attaches by having to appear in the case, not just by having to face liability for damages — yada yada.

    I didn’t read gov’s briefs, just Bates’ order, but that seems to be the path Gov is trying to take. I’m not sure that Gov asked for an interlocutory certification of the prior order, but I like the fact that in addition to telling them they don’t get a stay pending appeal, he’s telling them they basically can’t appeal now anyway.

    I’m guessing, without having followed all that closely, that he would find only an actual order by him to Miers or whoever to actually appear at a stated day and time would be appealable as a final order, given the current case posture.

    • bmaz says:

      Bingo. But Bates, god bless his beady little soul, has left them in a shitty posture for claiming all their bloated distress. Prettyman ain’t that big a place; the judicial dining facilities even smaller. I have an inkling Bates knows exactly where he stands vis a vis the DCCCA in making these pointed opinions and denying the stay, and he is quite comfortable standing there.

      • emptywheel says:

        Yeah, remember how many times Reggie said he had discussed a Libby issue in the elevator? I’m assuming Bates doesn’t have his own elevator or dining room.

        • MadDog says:

          Yeah, remember how many times Reggie said he had discussed a Libby issue in the elevator?

          I assume this was the “going down” elevator?

  9. Mary says:

    I need to refresh my screen after I go away.

    I basically agree with scribe @ 18. I can see a possiblity of a hail mary effort, though, on immunity bc while the S. Ct found no absolute immunity in Harlow v. Fitzgerald, most of the immunity cases which do allow interlocutory appeal are qualified, not absolute, immunity cases.

    So the argument would go that it is not so much whether the immunity is absolute or only qualified, as it is whether or not it is properly invoked, bc as the qualified immunity cases demonstrate; properly invoked the immunity is an immunity from being forced to participate in the process and not simply an immunity from liability or account.

    Bates’ only real argument in response to that in his opinion is that a trial is a lot longer and a lot more expensive than having to appear before Congress. I think there are a lot of others (for example, the fact that the founders would have had to place limits on the impeachment powers for those instances where the Executive is acting with absolute immunity if it had intended for such a creature to exist as between those two branches of gov), but I’m not sure it matters bc the order and memorandum are pretty nicely drafted on their own.

    And tieing Kagro and bmaz’ 19 together, it seems to me that the question there becomes whether or not the USAtty’s failure to serve or seek to enforce are ministerial or discretionary acts. If ministerial, then I think there could have/should have maybe? been a mandamus element in the filings. If not, then I’m not sure how the claim vis a vis the USA would plead.

    I like scribe’s scenario in 8, but it looks to me as if the Marshals are part of DOJ. I think the other option, aside from mandamus, is the fact that while Congress has steadfastly refused to do anything on the accountability front, a court can sanction attorneys in front of the court. Enforcement there can be dicey too, but there is a bailiff and there is bar assoc recourse for failure to adhere to court orders. While DOJ is within the Executive, lawyers only operate and function within it based on the acquiesence of courts – state courts, but courts who are a little touchy about belligerent refusals to comply with court orders.

    I have to say, though, I’m a bit in Kagro’s camp unless Mukasey decides to yield ground in his fealty to crown over country and liege over law.

    • bmaz says:

      And tieing Kagro and bmaz’ 19 together, it seems to me that the question there becomes whether or not the USAtty’s failure to serve or seek to enforce are ministerial or discretionary acts. If ministerial, then I think there could have/should have maybe? been a mandamus element in the filings. If not, then I’m not sure how the claim vis a vis the USA would plead.

      Well, I am not sure either; but it was integrally related to the facts presented and I would have like to have see the try just to get a read on how the court would view it. For that reason alone, irrespective of how the court found, i would have attached it as a flyer. But, hey, I am a wild and crazy unorthodox guy; what the hell do I know….

  10. Mary says:

    To clarify this:

    While DOJ is within the Executive, lawyers only operate and function within it based on the acquiesence of courts – state courts, but courts who are a little touchy about belligerent refusals to comply with court orders

    what I meant is twofold. First that a Federal Court has power to bar a lawyer from appearing in front of it and also to take other contempt type actions, or even in come cases impose sanctions, and a federal court’s actions can serve as a basis for action at the state licensing level as well. In most states, the licensing is a matter of state court action and often state courts and state bar associations share in the disciplinary function re: lawyers – as to hearings, censures, suspensions etc. up to revocaton. A Federal court would not be able to have a license pulled directly – but they could bar someone from appearing before them. A state court, however, can in some instances actually get a license pulled. All nonsequitor but I thought I put it badly, so fwiw.

  11. Mary says:

    29 – absent that extremely unlikely existence of a case on point to the contrary, I’d take a flyer at it too bmaz. I haven’t looked at the statutes but it kind of seems to me that if Congress went to the trouble of designating the duty in the USAtty for DC, then he ought to be susceptible to mandamus for failure to comply with a statutorily clear duty. Or that someone should have at least tried to make the law on that one.

    • bmaz says:

      No case I can find anywhere close to making it a bad pleading. Even if it is a bad decision, it is apparently something that needs to be known. I just get tired of dribbling everything out slo mo.

  12. lllphd says:

    ooooh, i love it when you guys talk legal.

    i don’t hesitate to note that IANAL, and moreover, i have not read bates’s opinion. however, from what i’m gathering from the sage remarks here, (a) bates made some clear distinctions between the miers/bolton situation wrt privilege, and rove’s, and (b) bates also makes some rather harsh comments wrt rove’s absolute immunity argument.

    my question then is this: are the scenario’s of appeal etc. described here comprehensive of these two situations (i.e., miers/bolton & rove), or do the distinctions bates is making carve out different scenarios for the two.

    if the latter, it seems that rove has less of a chance on appeal, even in terms of properly invoked or whatever? and, if that is the case, how might the DOJ approach that problem? in other words, if their case to protect miers/bolton is better without trying to pull rove in with it, could they ditch rove?

    or coming at it from another angle, is bates suggesting that miers/bolton might have some avenue with an appeal, but rove does not, so quit wasting my time on that one?

    i suppose that’s more complicated than it needs to be, and that my bottom line question is, do we have a sense here that the rove argument is dead in the water and his situation can be treated differently? can we carve rove’s situation here away from the case in any way, in hopes that he at least will be forced more quickly and unequivocally to appear?

    • emptywheel says:

      Bates doesn’t mention Rove–I do, and I think the White House is thinking of Rove when it crafts these legal arguments. As a reminder, here’s the status of the contemptuous White House aides wrt HJC:

      1) Miers: asked to appear. Refused to appear (based on absolute immunity) and refused to testify (based on EP).

      2) Bolten: asked to turn over documents. Refused to turn them over, based largely on EP and a refusal to turn over a traditional EP log.

      3) Rove: asked to appear. Refused to appear, based exclusively on absolute immunity, to date has made no claim to EP.

      I say this impacts Rove separately, bc Bates has said absolute immunity is BS, but that the sides need to come together to resolve the EP claims (though he did require Bolten to turn over some kind of EP log for the docs). If Bates insists there is no absolute immunity, and it’s not reviewable, then ROve has no reason not to appear and testify fully.

      In other words, if Rove and Miers showed up on the same day, at the current state of affairs, Miers could invoke EP with every question, but Rove–unless WH was willing to assert EP and probably have DOJ review that claim, which would be dangerous in some ways–would have to answer every question.

      • bmaz says:

        We might also note that Mr. Rove has put his tit in a wringer by jabbering about the case repeatedly in the press and that BS that was proffered in his name by Lamar Smith etc.; if he now goes all fuzzy memory, that will not go over well either.

        • lllphd says:

          really good point, as amnesia would seem his only recourse when – IF – he does ever get his arse parked in front of conyers. but, of course, that strategy won’t save him now. it seems to me his public flapping has been a fairly desperate move to cover that fat arse of his, and perhaps in response to a refusal of the WH to cover it with EP. does it make sense that luskin would be asserting absolute immunity for rove without benefit of WH approval? could that have forced them to go along with it, once public, rather than ditch their darlin’ turdblossom?

          (your image of rove’s tit in a wringer is even better than his getting frog-marched! thanks for that.

      • PetePierce says:

        You’re never going to see meaningful answers come from the larynx of Rove, Miers, or Bolten whatever happens in D.C., the D.C. Circuit, or the Supreme Court. You can bank that.

        • lllphd says:

          well, of course we won’t. that won’t really be the point of this, will it? i mean, who among us expected meaningful answers from gonzo?? but wasn’t it worth more than the price of admission to see him squirm and soil himself? it will certainly be worth that many times over to see rove tie himself in knots. and all it will take will be one knot too many, that one beyond what fitz got him into, and luskin apparently got him out of.

          and do i understand correctly that the committee will be able to ask him about ANYTHING, not just the US atty firings? or is it the siegelman connection they’re asking him about here? or plame? gosh, can’t keep his messes straight.

      • lllphd says:

        marcy, thanks, especially for the synopsis. which, surprisingly enough, served to confirm my sense of things. mainly, that rove’s inability to claim EP – and the refusal so far of the WH to assert it – sets him apart from miers/bolten in bates’s opinion.

        i suppose i was aiming at a curiosity as to what will happen now with rove. the WH has carefully avoided asserting EP for him, for obvious reasons, so bates has now put them in a tough corner (of their own making, of course). they may have some wiggle room, from what i’m gathering here, wrt miers/bolten, but not rove. and, as you point out, they appear to be crafting their arguments to support rove’s refusals as much as, if not more than, the others’.

        to get out of this, they may be forced to make a sacrifice of some sort. the logical one would be rove, as his claims are clearly just foolish. but how likely is that?? snark.

  13. jayt says:

    I imagine David Addington is having fits right now.

    David Addington is a walking, talking reason for me to want to believe in karma….

  14. MadDog says:

    From Conyers:

    “Today’s ruling clearly rejects the White House’s efforts to run out the clock on the committee’s investigation of DOJ politicization this Congress. I am heartened that Judge Bates recognized that the public interest in this matter is best served by the furtherance of the committee’s investigation,” Conyers said. “The committee intends to promptly schedule a hearing with Ms. Miers and stands ready as always to consider any reasonable offer of accommodation with the White House.”

    (My Bold)

    Is “promptly” next week or the week after? And can Turdblossom’s turn be far behind?

  15. foothillsmike says:

    What is the track record of this administration in the courtroom. With a batting average that low it should be minor league fodder. Instead it just goes on virtually mooning the country or to quote Cheney “so” How much health care could we afford for what we have spent on all these trials that don’t really mean shit when you have an imperial presidency.

  16. DWBartoo says:

    Thank you all:

    The erudite wisdoms, and most usefully sound insights the the Wheel-House Gang provides the rest of us are greatly appreciated.

    It is to our collective good-fortune that some of the finest students (and masters) of American juris prudence gather here, not to mock the ‘Law’ or to scoff at the naivete of those who would value the rule of Law rather than some convenient tyranny. Rather, their presence here, demonstrates that ready grasp and deep philosophical grounding which must certainly have attended the most important legal and Constitutional issues grappled with at the founding of this nation.

    You are all proper heiresses and heirs of that tradition.

    And the rest of us, we are all beneficiaries of your courage.

    • waynec says:

      I second that Bartoo!
      You put it beautifully.
      Thanks to all of you for your insights.
      You all really make my day.

  17. Rayne says:

    Speaking of U.S. Marshals…

    What the hell happened to the 8th director, Benigno (Ben) G. Reyna, appointed by Bush in 2001, but listed as “Assistant to the Vice President of Academic Affairs – Federal Relations, UTB/TSC and Former Director, United States Marshals Service” in 2002 by his alma mater, Texas Southmost College.

    The 9th and current director, John Clark, was appointed in 2006. Nothing untoward in appearance, but the gap between 2002 and 2006 is rather bizarre.

    Figured I’d go take a look-see at the entity we are hoping will obey the court’s instruction to enforce a subpoena or court order, and this is what I found. Hmmm…

  18. JohnLopresti says:

    I think the Memorandum Opinion as I begin to read it takes a cautious approach leaving congress plenty of room for perhaps a tight end offense against the Miers Bolten Mukasey Fielding Rove zone. Sometimes a tight end is just the ticket, plenty of beef, and perhaps a call somewhat unexpected from an offense on the rally. I especially enjoyed the Memorandum Opinion’s frequent references to Powell’s 1982 Harlow references. POGO even has a capsule biograph of A. Ernest Fitzgerald, inveterate cost cutter who incurred RMNixon’s firing wrath in a recorded spew of an order that Fitzgerald he be dismissed, Fitzgerald being the defendant in the Harlow matter cited. Scroll to the last hall of fame article on the linked page. Mukasey’s stammered, if you want to have (me) cite a case (on this “privilege”), which one it is, (as I [sit] here)… really said it all, how thin the defense really is; a Wexler excerpt from one of the AG’s attempts to wave the race into a timeout lap at that link.

  19. masaccio says:

    The Complaint seeks the following relief as to Miers on Count 1. a declaration that her refusal to appear was “without legal justification and violated her legal obligations”, and “an injunction directing Ms. Miers forthwith to appear before the Committee in compliance with the subpoena issued to her.” Similar relief is requested on the other counts. It seems to me that the remark about nothing pending suggests that HJC needs to issue another subpoena, and if the perp doesn’t show up again, the HJC seeks an injunction which should be granted.

      • PetePierce says:

        Bates ordered the release of documents and I fully expect the White House to hide them or obfuscate in some other way.

        Bates’ opinion:

        The Court will deny the Executive’s request for a stay,” “Hence, the Executive should respond to the document aspect of the subpoenas by producing non-privileged material and identifying more specifically the materials it is withholding on a claim of executive privilege.

  20. PetePierce says:

    Fielding’s letter to Conyers on Friday said this, but shorter Fielding: “Screw you and your committee; we want them to speak to you rather than testify in secret, with no oath and no transcript.”

    “Toward that end, and hopefully as a prelude to meaningful discussions between us, I propose that members of our respective staffs meet as early as next week to re-commence discussing possibilities for reaching an accommodation between the Branches in this matter,” Fielding wrote Friday in his letter to Conyers.

    “As I know you appreciate, this litigation is very important in determining constitutional contours governing certain relations between the Executive and Legislative Branches in the Congressional oversight setting,” Fielding wrote. “Accordingly, the Department of Justice has now filed an appeal in this matter, and is also seeking a stay of the decision pending review by the U.S. Court of Appeals for the D.C. Circuit.

    “That course of action will provide appellate consideration of the novel questions at stake in this matter and will enable the parties to obtain, if it should prove necessary, a final decision in this important matter…However, the fact that the Executive has notice an appeal in this matter does not signify that we think further litigation is the exclusive path forward.”