Category: Contempt of Congress

          A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an “administrative stay” of Judge Bates’s order in the Miers contempt case.  This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether to grant a stay pending appeal.  The stay issued on September 4, the date on which the White House was supposed to turn over non-privileged documents to the Judiciary Committee.  Presumably, it did not do so. 

            The appellate panel ordered the parties to address three questions by next week: (1) whether there is appellate jurisdiction over the appeal; (2) whether the case will become moot on expiration of the 110^th Congress; and (3) if the court has jurisdiction and issues a stay pending appeal, what briefing schedule would the parties propose on the merits.  The final brief on this is due the afternoon of September 10; Harriet Miers is scheduled to testify on September 11. 

            I am not sure what to make of this.  You have a panel of two Republican appointees (Ginsburg and Randolph) and one Democratic appointee (Tatel).  Obviously they recognize the importance of this matter and want to think about it carefully.  I also suspect that they would like (a) to dispose of the case on the narrowest possible grounds and (b) reach a unanimous decision if possible. 

            Finding no appellate jurisdiction may be the simplest way to achieve these objectives (I am assuming that the exercise of jurisdiction here is either discretionary or a very close call legally).  OTOH, they may want to try to put pressure on the parties to resolve the issue through negotiation, which would require exercising appellate jurisdiction.  But it is hard to figure out how they can put pressure on both parties at the same time.  Perhaps they could give the parties a short period to work out a settlement with the proviso that the good faith of each party’s effort would be considered in ruling on a stay pending appeal. 

            Judge Bates denies the Justice Department’s request for a stay in the Miers case.   His analysis of the four stay factors largely proceeds along the lines I expected.  While I thought he might give some credit to the Executive’s chances of prevailing on appeal simply based on the novelty of the issues presented, he does not: 

Without any supporting judicial precedent whatsoever—and, indeed, in the face of Supreme Court case law that effectively forecloses the basis for the assertion of absolute immunity here—it is difficult to see how the Executive can demonstrate that it has a substantial likelihood of success on appeal, or even that a serious legal question is presented.  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. 

            The court also observes that “[h]ad the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope the further intervention in this dispute by the Article III branch would not be necessary.”  Judge Bates points out that his prior order “does not compel Ms. Miers to appear at any particular date,” and urges the parties to reach a negotiated solution rather than continuing to bring disputes to the court. 

            I assume that the Executive will now seek a stay from the D.C. Circuit.  If this effort fails (and the odds are that it will), the Justice Department will have four options: (1) work out a negotiated solution with the Committee; (2) make an offer to the Committee that is sufficiently reasonable that it can return to Judge Bates if the Committee refuses; (3) have Miers appear at a Committee hearing and assert executive privilege on a question-by-question basis; or (4) have Miers continue to refuse to appear, risking the possibility that Judge Bates will hold her in contempt.

           In his July 31 decision on the congressional subpoenas to Harriet Miers and Josh Bolten, Judge Bates noted “the likelihood of appeal of this decision,” and he observed that “given the significance of the issues involved, a stay pending appeal is at least possible.”  The court will now have to resolve this issue because the Justice Department has filed a notice of appeal and moved for a stay.  

            Notwithstanding the court’s evident willingness to consider a stay, I think the Justice Department has an uphill battle here.  In evaluating a stay, the court is required to weigh four factors: (1) the likelihood that the Executive will prevail on the merits of its appeal; (2) the likelihood that the Executive (or Miers/Bolten) will suffer irreparable harm without a stay; (3) the harm that will be caused to the House or others by granting a stay; and (4) the public interest.

(1). The chances of the Executive prevailing on appeal seem low. Judge Bates firmly rejected the Justice Department’s main argument, which was that the House lacked standing to bring the lawsuit. His opinion concludes that “[c]lear judicial precedent, along with persuasive reasoning in OLC opinions, establishes that the Committee has standing to pursue this action and, moreover, that this type of dispute is justiciable in federal court.” Nothing in his opinion suggests that he viewed this as a close question.

The court was even more emphatic in rejecting the absolute immunity argument advanced by the Justice Department, describing it as “unprecedented” and “without any support in the case law.” After dismissing the Reno and Bradbury opinions which attempted to support this argument as “for the most part conclusory and recursive,” the court concluded that “[c]lear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process.”

The court also rejected the Justice Department’s contention that the complaint be dismissed because there was no cause of action authorizing the lawsuit. It did so on two alternative grounds, finding first that the case could be brought under the Declaratory Judgment Act without a free-standing cause of action and that in any event the Committee had an implied cause of action derived from Article I to seek a judicial declaration concerning the exercise of its subpoena power. The court acknowledged, however, that these were fairly novel questions and that there was little case law on point.

Given that direct litigation between the political branches is rare, and the lack of directly applicable precedent on the cause of action issue, the court will probably acknowledge that there is some possibility that the Executive will prevail on the merits of its appeal. Of course, this assumes that the court’s order is in fact appealable, which is also uncertain. All in all, it seems likely that the court will find that the first factor at most mildly favors the granting of a stay.

(2). The biggest obstacle faced by the Executive is substantiating the claim that it will suffer irreparable injury if a stay is not granted. The thrust of the argument is that Judge Bates’s order “negates” Miers’s asserted absolute immunity by ordering Miers to appear and testify before the Committee.

There are several problems with this argument. First, even if Miers were to appear before the Committee, it is difficult to see how this would cause the Executive irreparable injury. The only injury that the Justice Department has identified that might conceivably be caused by such an appearance would be a rather intangible injury to presidential “autonomy.” But the court has already dismissed this notion, noting that “the Executive’s interest in ‘autonomy’ rests upon a discredited notion of executive power and privilege.”

Second, it is difficult to see how a single appearance by Miers could cause serious, much less irreparable, harm of any kind. The Justice Department has suggested that permitting Congress to subpoena senior White House officials would give Congress the ability to undermine the President’s independence and autonomy by allowing it to summon his advisers at will, thus leaving him exposed to harassment and his advisers subject to potentially vexatious or oppressive questioning. But whatever one thinks of this specter, it is one that would emerge over time, not as the result of a single appearance by a former WH counsel regarding a subject the court has already found to be a proper matter for congressional inquiry.

The mere fact that Miers should appear before the Committee does not, of course, prevent the Executive from asserting its absolute immunity theory with respect to other congressional subpoenas, including subpoenas that are currently outstanding to other senior officials, such as Karl Rove. It is possible that Miers’s appearance would moot the absolute immunity issue here, thus depriving the Executive of the ability to preserve the issue for appellate review with respect to this particular case. Even that is not certain, however, as the court of appeals might consider the issue in the context of a subsequent refusal by Miers to answer particular questions posed by the Committee. In any event, it seems highly doubtful that the possibility of mooting the absolute immunity issue would be considered an irreparable injury.

The idea that Miers’s appearance would cause irreparable injury is further undermined by the fact that the Executive has already offered to have Miers appear, in private, and answer questions posed by the Committee. It is difficult to see how there could be irreparable injury from Miers’s mere appearance if the Executive has already offered such an appearance. (As far as I know, the Executive has not claimed that her appearance in a public setting would cause a discrete injury and any such injury could be remedied by having her appear in closed session). Moreover, as the court pointed out in its opinion, “the historical record produced by the Committee reveals that senior advisors to the President have often testified before Congress subject to various subpoenas dating back to 1973.”

Finally, it is critical to note, as the court repeatedly emphasized in its opinion, that Miers has not been ordered to answer any questions, and that the court has not addressed the merits of any particular assertion of executive privilege. There is nothing in the court’s opinion that prevents Miers from appearing and refusing to answer every question that calls for non-public information. Thus, the Executive can hardly claim that a stay is needed to protect its confidentiality interests.

Indeed, the court did not even order Miers to appear before the Committee. The court’s order declares that Miers “is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff,” but it does not order her to appear at any particular date and time. Judge Bates, in fact, implies at times that the court’s power may be limited to issuing declaratory, as opposed to injunctive, relief. At any rate, at this juncture the court has done no more than declare Miers’s duty to appear. As the judge repeatedly emphasized, it is his strong desire that the parties themselves work out the remainder of the dispute without the need for any further judicial intervention.

The only thing that the court actually ordered was the production of “non-privileged” documents and further description of documents withheld. Since it is up to the Executive in the first instance to decide which documents it believes are “non-privileged” and to decide how much of a description to give, this order hardly can be viewed as causing irreparable damage.

For these reasons this factor should cut heavily against the granting of a stay.

(3). The court must also consider the harm that granting a stay would cause to the House and to the Committee. Judge Bates has already found that the Committee is conducting an appropriate and legitimate investigation into the termination of U.S. Attorneys and that the refusal to respond to the subpoenas had caused an information injury to the Committee. Although the court did not attempt to quantify this injury, it seemed to acknowledge the importance of the information sought when it credited the Committee’s finding that “Ms. Miers had played a significant personal role in the termination decision-making.”

Furthermore, the court has already recognized that time is short, and that the end of the 110^th Congress could moot the subpoenas. Granting a stay would likely make it impossible for the Committee to obtain the information it seeks before the Committee itself (technically) expires at the end of the Congress.

The harm to the Committee appears particularly acute when one considers the context of the negotiations between the parties. Judge Bates has noted that “the record reflects that it was the Executive and not the Committee that refused to budge from its initial bargaining position.” He also observed that “the prospect of ultimate judicial resolution will help to ensure that the parties continue to negotiate in good faith rather than rewarding intransigence.”

Given these statements by the court, it is somewhat surprising that the Executive has apparently not made any new offer to the Committee to attempt to meet the Committee’s need for information. One obvious possibility would be for the Executive to reiterate its offer of a private interview with Miers (limited to Miers’s communications with persons outside the WH), but without the “poison pill” condition that the Committee waive its right to seek additional information. Alternatively, the Executive could at least offer to allow Miers to appear before the Committee (or staff) in closed session so that Miers could invoke executive privilege on a question-by-question basis. By failing to make any such proposals, the Executive creates the impression that it is not interested in meeting the Committee’s need for information or even in moving the process forward, but is simply trying to run out the clock.

Perhaps recognizing this problem, WH Counsel Fred Fielding wrote to Chairman Conyers on August 8, stating “the fact that the Executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive way forward.” Fielding proposed further talks to reach an accommodation between the branches. At the moment, however, there is nothing on the table that would seem to mitigate the harm that the Committee and House will suffer by virtue of the granting of a stay. Indeed, one could say that the issuance of a stay at this point would reward the Executive’s intransigence.

This factor therefore weighs against the granting of a stay.

(4). The court has also recognized the case “raises issues of enormous ‘public importance.’” Whether this statement referred to the legal issues in the case and/or the factual and public policy issues in the underlying investigation is unclear, but the court made several statements which suggested it viewed the investigation itself as significant to the public interest.

Indeed, perhaps the most surprising aspect of Judge Bates’s opinion was the degree to which he seemed to accept the Committee’s characterization of the underlying investigation into the firing of the U.S. Attorneys. For example, he suggested that the congressional investigation in McGrain v. Daugherty, 273 U.S. 135 (1927), involved “nearly the identical subject matter that the Committee is investigating.” The Committee’s investigation, he explained, is not merely “into the Executive’s use of his removal power but rather a broader inquiry into whether improper partisan considerations have influenced prosecutorial discretion.” At another point, he stated that “Congress’s use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury’s in United States v. Nixon.” [note: Judge Bates appears to be under the impression that the Nixon case involved a grand jury subpoena, whereas in fact it was a criminal trial subpoena].

To the extent that Judge Bates is equating the firing of the U.S. Attorneys with Teapot Dome (McGrain) or Watergate (Nixon), I think he has gone a little over the top. Nevertheless, he clearly believes that this investigation serves an important public interest, and therefore he will likely find that this factor also cuts against the issuance of a stay.

The Justice Department will probably contend that there is an important public interest in having the court of appeals review the significant legal issues in this case. As already noted, however, it is by no means clear that a stay is needed to preserve the possibility of appellate review. Moreover, to this logic would suggest that the Executive is more interested in obtaining appellate review than in trying to work out a resolution that could satisfy the interests of both branches. It seems highly unlikely that Judge Bates, who emphasized the importance of attempting to resolve the parties’ differences through negotiation and accommodation, would accept this logic.

For all of these reasons I predict that Judge Bates will deny the request for a stay pending appeal.

The six points laid out by Judge Bates (listed in my last post) should be instructive to both parties as they move forward.  For the executive branch, it should be evident that it made a mistake in refusing to have Miers appear in response to the congressional subpoena.  By doing so, it presented the court with a pure legal issue that could be resolved without getting into the disputed and politically contentious facts regarding the U.S. Attorney firings.  Had Miers appeared and refused to answer particular questions on the grounds of executive privilege (as WH aide Sara Taylor did), it would have been far more difficult for the House to prevail. 

The executive branch attempted to mitigate this weakness in its litigation posture by offering to have Miers appear and answer questions in a private, unsworn and untranscribed interview with the Committee.  However, as Judge Bates states, the executive branch undercut itself by adhering to its original proposal without modification.  Although not stated by the judge, one must assume that he thought that proposal was unreasonable or inadequate in some respect.  It seems to me that the insistence that the Committee give up the right to seek any further information as a condition of obtaining the interview was an obvious non-starter.  Had the executive branch dropped this condition, the case might have come out differently. 

The executive branch will undoubtedly be tempted to appeal this ruling to the D.C. Circuit.  The first problem that it will face is whether this is an appealable order.  Certainly it is not a final order.  Frankly, I don’t know enough about this area to say one way or the other, although I am told that there is a recent D.C. Circuit case (involving subpoenas to Members of Congress) that would suggest this is not appealable.

Assuming that this hurdle can be surmounted, however, is it wise for the executive to appeal?  Appealing the case in the current posture places the executive branch in the same difficulty it was in before the district court.  It will be defending very problematic legal positions on standing and absolute immunity in a complete vacuum.   

Although there is a solid majority of Republican appointees on the D.C. Circuit, there is no guarantee that this will give the executive a more sympathetic audience for its positions.  One of the Republican appointees, Judge Thomas Griffith, previously served as Senate Legal Counsel and has a keen appreciation of the congressional perspective on these issues.  Another, Judge Ginsberg, served on the three-judge district court that upheld congressional standing in the census litigation based in part on the fact that congressional standing to enforce subpoenas was well-established.   And, in general, it is hard to see anything in Judge Bates’s thorough and well-reasoned opinion that would likely lead to a reversal by the appellate court. 

Of course, appealing the decision would take time, and the appeal might not be decided before the Bush Administration’s term expires.  Nonetheless, the Administration has to be concerned about creating yet another judicial precedent that will restrict the authority and autonomy of the executive branch.  And it is not as if appealing the decision makes it likely that these matters will be off the public radar.  The Senate Judiciary Committee has already jumped on Bates’s opinion to renew calls for Karl Rove and Josh Bolten to respond to subpoenas.   

The executive branch would be better advised to offer a private interview with Miers on the condition that any questions she answers would remain subject to a claim of executive privilege.  The Committee would have to agree that following the interview (which would be transcribed) the parties would take any disputed questions and answers back to the court, and that those parts of the interview would remain sealed until there was a final ruling on the privilege issues.  This proposal would seem to satisfy the Committee’s legitimate investigative needs and it would be difficult for the Committee to refuse without losing the high moral ground that allowed Judge Bates to exercise his discretion in its favor. 

Perhaps the most vexing question has to do with how such a proposal would impact the contempt matter involving Karl Rove, who, as Judge Bates noted, was subpoenaed by the Committee to testify about alleged political prosecutions and refused to testify based on absolute immunity.  It would likely be in the executive branch’s interest to make a similar offer for Rove to testify privately and to reserve questions about executive privilege.  On the other hand, the Committee is undoubtedly much more eager to haul Rove into a public hearing than it is Miers.  Moreover, in Rove’s case there is no readily available forum to decide the privilege issues (even if the parties were to agree to submit them to Judge Bates, I doubt he would agree to resolve them).   

Because the Rove matter is not pending before Judge Bates, I doubt that he would look kindly on any attempt by either party to tie it to resolution of the matters that are before him.  Therefore, if the Committee chooses to treat the Rove matter differently from the Miers matter, there is probably nothing that the Administration can do about it.  From a public relations standpoint, though, the Administration would be able to say that it made the same offer with regard to Rove as it did for Miers.

 

 

Below are the six reasons given by Judge Bates as to why he would exercise his discretion to issue a ruling in the Miers case.  In my next post I will consider how these points may impact the parties as they go forward. 

(1)  judicial resolution would settle this dispute between the parties as to whether Ms.

Miers is absolutely immune from congressional process and whether Mr. Bolten must respond further. Resolution of the immunity issue will determine the next steps (if any) the parties must take in this matter.  

(2) contrary to the Executive’s suggestion that the Committee did notmake any serious counter-offers, the record reflects that it was the Executive and not the Committee that refused to budge from its initial bargaining position.  Mr.Fielding himself stated that the Committee had written to him “on eight previous occasions, three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” The Executive, by contrast, apparently continued to adhere to its original proposal without modification. Thus, the “equity of the conduct of the declaratory judgment plaintiff” supports the exercise of the Court’s discretion in favor of the Committee. 

(3)  the record is fully developed for purposes of the issues presented by these motions. Significantly, immunity is strictly a legal issue, and it is the judiciary that must “say what the law is” with respect to that matter.  

(4) the parties are most surely sufficiently adverse. 

(5) both sides agree that this case raises issues of enormous “public importance.”  

(6) there is a strong possibility that this sort of dispute could routinely “recur.” Indeed, it already has: on July 10, 2008, former White House advisor Karl Rove asserted absolute immunity in response to a congressional subpoena and on July 30, 2008 the Committee voted to hold him in contempt.

 

Judge Bates also rejected the argument that he should exercise his equitable discretion to decline to hear the case.  This was a little more of a surprise.  Given the highly political nature of the controversy before him, I thought the court would be tempted to exercise his equitable discretion, at least on a temporary basis while the parties attempted to work out a compromise.  For example, I thought that the court might suggest that the Judiciary Committee could accept the White House’s offer of a private interview and production of some of the documents so long as the White House withdrew the (unreasonable) condition that the Committee agree not to seek any further information.

             The end result, however, is not terribly different from that scenario.  If the executive branch decides not to appeal immediately (a big if), the parties might now agree to a transcribed deposition of Miers.  For those questions for which the White House asserts executive privilege, the parties could return to court and present the disputed questions to Judge Bates for resolution.  Since the White House was apparently willing to let Miers answer at least some of the questions it believes to be protected by privilege, the parties might further agree that the answers to these questions will be kept sealed unless and until the judge rules that the privilege does not apply.

             This is certainly a more civilized way of resolving disputes than locking Miers up in the basement of the Capitol.  Rumors to the contrary notwithstanding, there is no jail there, although I suppose they could chain her to a vending machine.

The court rejected the Justice Department’s threshold arguments on standing and cause of action.  Based on the court’s remarks at the oral argument, this does not come as a surprise.  For reasons that I have discussed before, the court was not impressed with the Justice Department’s attempt to disavow the 1980s OLC memos which clearly stated that civil enforcement, not inherent contempt, was the appropriate and preferred method for enforcing congressional subpoenas against the executive.  

 The court’s opinion has several devastating passages on the illogic of the executive branch’s current position:

As noted above, one power that Congress has at its disposal is inherent contempt. Following a citation for congressional contempt, Congress could dispatch the Sergeant-at-Arms to detain Ms. Miers and Mr. Bolten in preparation for a trial before Congress. See Morton Rosenberg, Cong. Research Serv., Congress’s Contempt Power: Law, History, Practice, and Procedure, No. 34-097, at 15 (2008), available at http://www.au.af.mil/au/awv/awcgate/crs/rl34097.pdf. In response to such action, both sides here appear to agree (see Tr. at 85) that Ms. Miers and Mr. Bolten would likely file a writ of habeas corpus with this Court to challenge the legality of their detention, raising the central issue of the scope and nature of Congress’s subpoena power — precisely the issue presented by the instant action. By invoking the [Declaratory Judgment Act] to gain anticipatory review of that same question, the Committee can obtain judicial resolution regarding its subpoena power without the unseemly scenario of the arrest and detention of high-ranking executive branch officials, which would carry the possibility of precipitating a serious constitutional crisis. That would seem to be

just the sort of process sanctioned by the DJA.

* * *

Still, the Executive takes the Committee to task for failing to utilize its inherent contempt authority. But there are serious problems presented by the prospect of inherent contempt, not the least of which is that the Executive is attempting to have it both ways on this point. To begin with, prosecution pursuant to inherent contempt is a method of “inflicting punishment on an individual who failed” to comply with a subpoena. See Olson OLC Opinion at 137. As OLC has recognized, a civil action, by contrast, is directed towards “obtaining any unprivileged documents necessary to assist [Congress’s] lawmaking function.” Id. Put another way, the two remedies serve different purposes, although it is true that threatening prosecution under inherent contempt may lead to the production of documents. But unlike a civil action for subpoena enforcement, that is not the primary goal of inherent contempt. Second, imprisoning current (and even former) senior presidential advisors and prosecuting them before the House would only exacerbate the acrimony between the two branches and would present a grave risk of precipitating a constitutional crisis. Indeed, one can easily imagine a stand-off between the Sergeant-at-Arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him. See Cooper OLC Opinion at 86 (“[I]t seems most unlikely that Congress could dispatch the Sergeant at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege.”). Such unseemly, provocative clashes should be avoided, and there is no need to run the risk of such mischief when a civil action can resolve the same issues in an orderly fashion. Third, even if the Committee did exercise inherent contempt, the disputed issue would in all likelihood end up before this Court, just by a different vehicle — a writ of habeas corpus brought by Ms. Miers and Mr. Bolten. In either event there would be judicial resolution of the underlying issue.

Indeed this administration, along with previous executive administrations, has observed that inherent contempt is not available for use against senior executive branch officials who claim executive privilege. In this very case, the Executive has questioned “whether [inherent contempt] would even countenance the arrest of the President or his closest aides for refusing to testify or provide privileged documents . . . at the President’s direction.” See Defs.’ Reply at 22. The Executive has described that possibility as a “dubious proposition.” Id. Previous administrations have gone even further. The Olson OLC Opinion explained that “the same reasoning that suggests that the [criminal contempt] statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.” See Olson OLC Opinion at 140 n. 42. The Cooper OLC Opinion concurred: the inherent contempt alternative “may well be foreclosed by advice previously rendered by this Office.” See Cooper OLC Opinion at 83. Thus, there are strong reasons to doubt the viability of Congress’s inherent contempt authority vis-a-vis senior executive officials. To be sure, the executive branch’s opinion is not dispositive on this question, and the Court need not decide the issue. At the very least, however, the Executive cannot simultaneously question the sufficiency and availability of an alternative remedy but nevertheless insist that the Committee must attempt to “exhaust” it before a civil cause of action is available.

I have quickly read Judge Bates’s  93-page opinion in favor of the House of Representatives in the Miers contempt case.  I will post just a few observations today.

           House Judiciary Committee Chairman John Conyers is threatening Karl Rove with contempt for the latter’s refusal to appear at a congressional hearing in response to a subpoena.   Rove is evidently asserting that, as a former senior adviser to the President, he is absolutely immune from compelled testimony relating to his service in that capacity.  This is the same position that former WH Counsel Harriet Miers is taking in the case pending before Judge Bates. 

            As he did about a year ago with respect to WH Chief of Staff Josh Bolten, Conyers has explicitly invoked the possibility of using inherent contempt to enforce the committee’s subpoenas.  I have previously suggested that even mentioning this possibility was an extraordinary step to take, particularly with regard to an executive branch official.  There are now several factors that could lead to the actual use (or at least attempted use) of the inherent contempt procedure.

First, the Department of Justice has itself endorsed the inherent contempt procedure as the appropriate means for testing the validity of a congressional subpoena to an executive branch official. This would give the House considerable political cover if it were to proceed with inherent contempt.

Second, Judge Bates is currently considering whether the House can enforce a subpoena against executive officials in court. If the judge rules that this is not an option, the House could argue that inherent contempt is the only viable means for enforcing its subpoenas.

Third, if the House were ever going to use inherent contempt, Rove would make a pretty inviting test case. He is not exactly a sympathetic character, being generally portrayed (most recently in Scott McClellan’s book) as a ruthless political operator. The political nature of his duties, as well as the fact that he is not even a current WH employee, make the argument that he is absolutely immune from congressional subpoenas look particularly weak.

It should be noted that Judge Bates seemed fairly skeptical of the absolute immunity argument during the June 23 oral argument. In questioning DOJ lawyer Carl Nichols, the judge noted that the administration’s absolute immunity position was not supported in the caselaw, and he suggested that Harlow v. Fitzgerald, 457 U.S. 800 (1982) (rejecting the notion that presidential aides have an absolute immunity from civil suits for damages), cut against that position. Bates also expressed the concern that absolute immunity for senior presidential advisers would have the effect of converting the qualified executive privilege into an absolute privilege.

I assume that the House will not move on an inherent contempt proceeding until Judge Bates issues his ruling on the motions before him. If Bates allows the civil contempt proceeding to go forward, or if he reaches the merits and rules in favor of the executive branch on the absolute immunity argument, the House would presumably not proceed with inherent contempt. If, on the other hand, the court were to dismiss the case without reaching the merits of the absolute immunity defense, the stage would be set for extraordinary spectacle of an inherent contempt proceeding against Rove.

I don’t know how Judge Bates will ultimately rule in the House contempt suit against Harriet Miers and Josh Bolten, but, after listening to Monday’s nearly three-hour oral argument in the packed ceremonial courtroom (which felt like an oven after about two hours), I do not think he will dismiss the suit on standing grounds.  This is somewhat surprising because, as I have noted before, Bates’ opinion in Walker v. Cheney suggested that he would be receptive to DOJ’s standing argument.

House Counsel Irv Nathan argued first, and Bates’ initial questions to him did not involve standing, but focused on the merits of privilege claims that had been asserted. It was not until well into Nathan’s argument that Bates asked him about standing, and the judge did not aggressively pursue the issue (even when Nathan described the executive’s position on standing as “preposterous”).

When it came DOJ attorney Carl Nichols’ turn, the judge revealed more of his thinking on the standing question. He asked Nichols why the injury suffered by the Judiciary Committee here was any different than that suffered by the executive branch or a private party in a subpoena enforcement action. He also pointed out that Ted Olson and Chuck Cooper, well-respected former heads of OLC, had each authored memos in the 1980s in which they expressed the view that either House of Congress could enforce its subpoenas through civil actions in federal court, thus implicitly recognizing that there would be standing to bring such actions. (Judge Bates repeatedly adverted to the Olson and Cooper memos during the argument, and seemed troubled by the fact that DOJ is now disavowing their positions with regard to the availability of civil enforcement.)

When Nichols asserted that the injury in the Miers case was the same as the injury in the Walker v. Cheney case, the judge demurred with a somewhat cryptic comment to the effect that the injuries were a little different. More importantly, Bates suggested that he was bound to follow the D.C. Circuit’s precedent on this subject, and that the court of appeals in U.S. v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976), had explicitly, if briefly, held that “It is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.” The judge seemed underwhelmed by Nichols’ suggestion that the Supreme Court’s decision in Raines overruled that precedent, noting that Raines was dealing with a different type of standing issue (i.e., the standing of individual legislators) and that the Court did not mention the AT&T case.

Most interestingly, Bates pressed Nichols on what would happen if the House arrested Miers or Bolten pursuant to the inherent contempt procedure that Nichols acknowledged the House could use. Nichols replied that the traditional method for challenging such arrest would be for the incarcerated individual to seek habeas relief. Bates then asked “why isn’t that the same thing” (or words to that effect) as a civil enforcement action brought by the House?

Nichols replied that in the habeas context there would clearly be a personal injury (i.e., the plaintiff would have been deprived of his or her liberty). There are, however, two problems with this response. The first is that the essence of the Justice Department’s argument against standing, and of its attempt to fit the contempt case into the Raines framework, is the absence of any historical practice of courts resolving legislative demands for information against the executive. But by acknowledging that the courts would have to resolve the very same legal issues (between the same parties) in a habeas action, the Justice Department largely undercuts the force of this argument. In essence, it is admitting that the dispute between these parties is one “’traditionally thought to be capable of resolution through the judicial process.’” Raines, 521 U.S. at 818.

Even if one grants that the legislative branch does not have, for some reason, the right to seek affirmative judicial relief in support of its subpoenas, there is a second problem with DOJ’s position. One could easily conceptualize the House’s lawsuit as one for a declaration to the effect that if Miers and Bolten were arrested for contempt, they would have no right to habeas relief. This would seem like a traditional and commonplace use of the Declaratory Judgment Act. In that situation the House would seem to have the same standing as any potential defendant who brings a declaratory judgment action to forestall future litigation.