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And Now the Appeals Court Jumps in the Fray

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This is weird. The DC Appeals Court apparently doesn’t want to give Obama time to make a deal between Bush’s minions and the House Judiciary Committee.

After specifically invoking the benefit of "permitting the new President"… "to express [his] views on the merits of the lawsuit" between the House Judiciary Committee and Harriet Miers and John Bolten last fall when it stayed Judge Bates’ ruling knocking down Absolute Immunity, and in spite of the fact that said new President asked for two additional weeks to submit his brief on the debate over Harriet Miers’ testimony, and in spite of the fact that HJC agreed to that two week delay, the DC Appeals panel has ordered DOJ to submit its brief by February 25, half the time the Obama Administration requested. 

That’s weird for several reasons. Normally, when the legislature and the executive get into a squabble, the courts like to have them try to resolve the squabble on their own. One of the reasons Obama had wanted two weeks was to try to broker a deal himself. Given reports that such a deal is taking some time, the order to submit briefs this Wednesday makes it much less likely that HJC and Bush’s minions will make a deal before the Appeals Court gets involved again.

The one-week extension also guarantees that Obama will submit his brief before Dawn Johnsen takes over at OLC; her confirmation hearing is scheduled for the same day as the new deadline for the brief. One way Obama could have responded to this suit would be to simply withdraw Steven Bradbury’s audacious memo expanding Absolute Immunity, but that won’t happen before Johnsen takes over.

Now, I have no idea why the Appeals Court is so antsy to get involved here, but there are several possibilities.

It’s possible that they’ve seen Greg Craig’s statement explaining that Obama will not "do anything that would undermine or weaken the institution of the presidency" and they worry that Obama will craft a deal that preserves Absolute Immunity, and they want to prevent that from happening (though why they think John Conyers would agree to such a deal, I have no clue).

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Rove Deadline Delayed

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John Conyers has delayed Rove’s deadline to give a deposition by three weeks–from February 2 to February 23.

But before he left office, Bush, acting through former White House Counsel Fred Fielding, decided not to respond to any congressional subpoenas. Bush, citing executive privilege, asserted an “absolute immunity” claim in responding to such subpoenas, meaning senior Bush aides were directed not to even appear when subpoenaed.

Obama and his legal advisors have rejected that view as an overbroad reading of the president’s authority, but they have yet to fully formulate their own response to the question.

Conyers had demanded that Rove comply with the subpoena by next Tuesday, Feb. 2, but the deadline has been extended to Feb. 23, according to sources close to the issue.

I realize at least one of you was planning your birthday around Rove’s testimony (though it’s not yet clear whether it’ll be public or not), but I think this is a good thing.

I expect Obama to reject at least some parts of what Rove is trying to do here–certainly the idea that former senior aides have absolute immunity from showing up before Congress if not the notion of absolute immunity in general (to say nothing of former aides of former Presidents). Pushing the deadline out gives Obama several additional ways to respond here. They can respond through their filing on the suit, which is due on February 18. And, presumably before this deadline, Dawn Johnsen will also be installed at OLC with the option to pull Steven Bradbury’s opinion authorizing "absolute immunity" for former aides, which (after all) literally contradicts the logic Rehnquist used to justify absolute immunity in the first place.

Bush’s legal team keeps pretending there will be some point at which Obama is forced to negotiate with the Bush Administration on this. And that’s probably true for Miers’ testimony. But given the sketchiness surrounding Bush’s claim to privilege for Rove, that may not be true at all for Turdblossom.

Obama's Executive Privilege Order and the House Judiciary Committee Lawsuit

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I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees Read more →

Those Evil Dems Are Preventing Bush from Archiving Properly

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facade.gifI noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

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Oh, Now They're Trying to Insist on Their Responsibility to Archive

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It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency Read more →

The Little Bomblet for Turdblossom in the New Rules

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Kagro has been tracking the passage of the new House rules package over at his new digs.

As he described earlier, John Conyers stuck something in the new rules that will allow the House Judiciary Committee to continue its lawsuit against Harriet Miers and Bolten to get their testimony in the US Attorney scandal.

One nice goody buried in the new House Rules package: the House will authorize the Judiciary Committee to continue its lawsuit seeking to enforce its subpoenas and contempt of Congress citations against Bush White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers.

Technically, Miers and Bolten were in contempt of the 110th Congress. But with its adjournment, the 110th Congress no longer exists, so there’s nothing to be in contempt of, nor any plaintiff in the lawsuit. The courts had indicated that this might give them cause to moot the whole case and drop it. But the Rules package specifically authorizes the Judiciary Committee in the new 111th Congress to continue the suit. And we had earlier word that the 111th was considering reissuing those subpoenas.

And, as Kagro now points out (now that the rules have passed), there’s a little bomblet in there specific to Rove.

There’s one more juicy nugget in the rules package that just passed. Regarding the Judiciary Committe’s power to continue its suit against Miers and Bolten.

From Majority Leader Steny Hoyer’s fact sheet (PDF):

In addition, it authorizes the Judiciary Committee and General Counsel to add as a party to the lawsuit any individual subpoenaed by the Committee in the 110th Congress who failed to comply.

Who else was subpoenaed by the Judiciary Committee in the 110th Congress and failed to comply?

Karl Rove.

And Michael Mukasey.

Nice going, Chairman Conyers and Speaker Pelosi.

In other words, Rove–and Michael Mukasey, who refused to turn over documents particularly relating to the Siegelman prosecution–is about to get added to HJC’s lawsuit forcing him to testify before HJC in the 111th Congress.

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

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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.

[snip]

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.)

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Conyers to Luskin: We Told You So

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Today it’s Conyers’ turn to take a victory lap with Harriet Miers, Josh Bolten, and Karl Rove. This time, it’s the letter to Luskin that is the most enjoyable, particularly for the paragraph that basically says, "Remember when we said this absolute immunity stuff was bullshit? Well, Judge Bates agrees."

 As your July 29, 2008, letter points out, the "precise legal issue" raised by Mr. Rove’s claim of immunity from our subpoena as a former White House official was before Judge Bates in Committee on the Judiciary v. Miers. Yesterday’s decision in that case provides an unequivocal answer. In accordance with the ruling by Chairwoman Sanchez rejecting your immunity assertion, the court found that the absolute immunity claim is "entirely unsupported by existing case law" and explicitly "reject[ed] the Executive’s claim of absolute immunity for senior presidential aides." Opinion at 78. 

Then, Conyers makes the most of Lamar Smith’s blabby mouth, reminding Luskin that Smith has promised Rove would abide by Bates’ decision.

In his letter to me of July 29, 2008, Committee Ranking Member Lamar Smith also noted the pendency of the District Court case and stated that "Mr. Rove assuredly will abide by the court’s decision when it issues." 

Then again, long ago Luskin assured Dan Abrams that Rove would testify. And we see how that worked out.

BREAKING: Judge Bates Rules for the House

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Judge Bates just issued his opinion in the Miers and Bolten contempt case–and he ruled in favor of the House. Miers will have to appear and Bolten will have to turn over the documents a description of the documents he is withholding. (I guess all it took was for me to post this post.)

This also means Rove will have to appear, as Bates threw out the notion of "absolute immunity."

I’ll have more shortly.

Update: Here’s the opinion. (Note, I’ve fixed my statement above–Bolten has to turn over a description of the documents he is withholding, but not the documents, yet.)

Here’s the crux of Bates’ logic:

Notwithstanding that the opposing litigants in this case are co-equal branches of the federal government, at bottom this lawsuit involves a basic judicial task — subpoena enforcement — with which federal courts are very familiar.

Update: Here’s what Bates thinks of this "absolute immunity" claim:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Also, bonus points to Bates for mentioning Boumediene, which is sure to cause BushCo a whole lot of heartburn.

Update: Here’s Conyers on the decision.

Today’s landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law. Judge Bates’ decision makes clear that the Congress had the right to subpoena Harriet Miers to learn of her role in the US Attorney firings, that her claim to be immune from subpoena was invalid and that the Committee was entitled to challenge that claim in Court. The Judge also ruled that the White House may not claim Executive Privilege over documents without describing them in reasonable detail Read more →

Why Did Harriet Know of Rove’s Involvement?

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I didn’t finish Scottie McC’s book on the plane. Barely started it, actually. Suffice it to say I had an interesting chat, instead.

But I did manage to scan the thing closely enough to have a lot of questions–and here’s one I’d like to throw out at the lawyerly types in the crowd.

Why would Harriet know–in July 2005–of Rove’s involvement in the leak? Scottie McC describes Harriet warning him (though Scottie already knew a lot of it) that something was going to break just before Rove’s involvement in the leaks to Novak and Cooper became known.

Later that morning [July 10, 2005], Harriet Miers, a longtime Bush loyalist from Texas who had taken over as White House counsel when Al Gonzales was confirmed as attorney general, called me through the White House operator. Like me, Harriet had served in the Bush White House since day one. The West Wing was quiet that day. I had come in to catch up on work, watch some of the Sunday political shows that were taped, and prepare for the week ahead free from interruption.

Harriet was calling from her office and said she needed to come and talk to me about something important. She walked in, closed the door behind her, and said, "There’s some news that’s likely to come out tomorrow about Karl in the leak investigation that may appear to contradict what you said nearly two years ago."

"I heard," I said, thinking about Isikoff’s report but not taking time to let what she had said fully sink in. Harriet reiterated to me that we still could not comment on the investigation publicly. In effect, she was forbidding me from talking and setting the record straight about my previous comments.

Now perhaps the answer is very simple: perhaps Isikoff called for comment before he published his article. Perhaps Isikoff even called Harriet and read her the email from Cooper to his editor, in its entirety, that proved Rove was lying about his claims not to have said anything about Plame to Cooper. He had done the same favor–in guise of getting comment–for Luskin.

But why call Harriet, instead of, say, Rove or Scottie McC? (Well, okay, I’ll assume he may have called Rove, but he did not call Scottie first.) (Come to think of it, maybe Luskin just called Harriet as a courtesy.)

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