Point of Order

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.

Well, not exactly.  But pretty close.  I asked the following a few weeks ago: “Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy.” 

                                                                                                                                                                                                                                      The answer to that question is yes.  Arguing before U.S. District Judge John Bates today, the DOJ attorney explicitly acknowledged that Congress could use the inherent contempt remedy to enforce demands for information to executive branch officials.  When a few minutes later Judge Bates suggested that Congress could arrest former White House Counsel Harriet Miers, the DOJ attorney helpfully interjected “or Mr. Bolten.” 

So lets get this straight.  The Justice Department contends that senior WH officials like Bolten and Miers have absolute immunity from appearing before congressional committees in response to subpoenas, an immunity which it contends is needed not only to protect executive privilege, but to prevent distraction of key presidential aides and maintain the “autonomy” of the President.  Rather than allowing this dubious claim to be tested through a civil contempt suit, which would require little or no personal involvement by the aides in question, DOJ suggests that it can only be tested by arresting the aides, throwing them in a jail cell, and having them seek release through a habeas petition.  This is the way to protect presidential autonomy and keep the WH running smoothly? 

This was far from the only interesting takeaway from today’s hearing, but it was certainly the most jaw-dropping.  More on the hearing later.