This week promises an historic collision between Congress and the Executive Branch over the scope of executive privilege — the judge-made doctrine that some consultations with the President are so sensitive that no party can compel their public disclosure.
The confrontation arises in the congressional investigation of the firing in 2006 of eight U.S. Attorneys around the country, evidently for purely political reasons. The House Judiciary Committee wants to hear testimony about the incident from White House Chief of Staff Joshua Bolten, and former White House Counsel Harriet Miers. The committee has scheduled Ms. Miers for Thursday morning, September 11.
In a 93-page opinion released in late July, federal judge John Bates ruled that Miers and Bolten have to appear before the Judiciary Committee. If any specific question posed by the committee trenches on executive privilege, Bates wrote, the witnesses can assert the privilege in response to such specific questions.
Judge John Bates
Indeed, Judge Bates found Miers’ claim of blanket immunity from having to appear before Congress to be “unprecedented.” Bates’ lawyerly tone frayed a bit in late August when he rejected a White House request for a stay of his order: “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.”
This exchange is all the more intriguing to those of us who practice law in Washington and remember John Bates as a determined defender of the federal government’s many imperial prerogatives while he was a senior lawyer with the U.S. Attorney’s office. That life tenure business for federal judges — designed to ensure their independence — often works.
Now the White House is trying to get the U.S. Court of Appeals for the District of Columbia Circuit to stay Judge Bates’ order and hear an appeal on an expedited basis. The Court has asked for briefs by 4 p.m. on Wednesday, the day before Ms. Miers is scheduled to appear.
Watch this important case! I call it important not because I anticipate that the Bush Administration will suffer further embarrassment (it needs no more of that), or because I hope it might injure John McCain’s campaign (he had nothing to do with this lamentable episode in the politicization of our system of justice). It is important because perhaps the courts and Congress will assert their own powers against the overweening Presidency created by the Bush/Cheney-ites. The Constitution contemplates that the different branches of government will check and control each other; it’s time for Congress and the courts to show up.
Step back a moment. The question is whether the president and his advisers fired the chief prosecutors in eight regions of the country for solely political purposes. Why should such information be shielded from public view? Is that not exactly the sort of information that the public, and the electorate, should have before them? If the accusations are not true, and if the firings were for performance-based, neutral reasons, then a vile calumny on the administration will be dispelled. And if the accusations are true, then the public and Congress can determine whether steps must be taken to protect our justice system from petty political paybacks.