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Committee on the Judiciary v. Harriet Miers:

The U.S. Court of Appeals for the D.C. Circuit today issued a brief opinion in Committee on the Judiciary v. Miers. The Judiciary Committee is seeking to obtain records and testimony from Harriet Miers and Joshua Bolten. Both Miers and Bolten asserted executive privilege, prompting a contempt order from the committee, which then filed suit to force the production of records and their testimony. The District Court held that Miers was required to testify before the committee, but could assert executive privilege in response to specific questions that seek privileged information, and also ordered both to produce non-privileged records sought by the committee. Today's D.C. Circuit opinion granted Miers' and Bolten's motion for a stay of the district court judgment pending appeal, and denied the motion for expedited briefing of the case. The per curiam opinion was issued on behalf of Judges Ginsburg and Randolph. Judge Tatel wrote a separate opinion "concurring in the disposition of the motions."

UPDATE: The WaPo reports here.

Floridan:
I wonder what the Las Vegas line is on Miers and Bolton getting a Presidential pardon before Inauguration Day?
10.7.2008 12:25pm
J. Aldridge:
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said yesterday that he thinks lawmakers ultimately will "get to the bottom of the Bush administration's disgraceful politicization of the Justice Department."

Conyers is just mouthing off to those who might not know better.
10.7.2008 12:28pm
Dave N (mail):
Floridan,

First there would have to be a crime.

Oh wait, I forgot. Working for a Republican Administration IS a crime in the delusional world of Kos.
10.7.2008 12:32pm
PLR:
What are the grounds for the appeal? Subpoenas are optional for friends and advisors of W?
10.7.2008 12:35pm
Oren:
Dave, don't be ridiculous. Miers and Bolton are transparently guilty of violating USC2:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.


Before you jump on the "pertinent to the question under inquiry" phrase, please note that the SCOTUS ruling in Wilkinson v. US:
It is not for this Court to speculate as to the motives that may have prompted the decision of individual members of the Subcommittee to summon petitioner, since their motives alone would not vitiate an investigation that was serving a legislative purpose.

Or Eastland V. US Servicemen's Fund

Held: The activities of the Senate Subcommittee, the individual Senators, and the Chief Counsel fall within the "legitimate legislative sphere," and since it is determined that such is the case, those activities are protected by the absolute prohibition of the Speech or Debate Clause of the Constitution against being "questioned in any other Place," and hence are immune from judicial interference.

(a) The applicability of the Clause to private civil actions is supported by the absoluteness of the term "shall not be questioned" and the sweep of the term "in any other Place." P. 421 U. S. 503.
(b) Issuance of subpoenas such as the one in question is a legitimate use by Congress of its power to investigate, and the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses. Pp. 421 U. S. 503-505.
10.7.2008 12:47pm
wm13:
Gosh, Oren, it seems like the statute you cite is pretty conclusive. It doesn't have any exceptions for executive privilege or anything. Open and shut. What a shame that the appeals court wasn't aware of the statute when it wrote its opinion.
10.7.2008 1:12pm
A. Zarkov (mail):
Oren:

So I take it that in spirit, if not in law, you would also have supported HUAC's summoning the Hollywood Ten and others for testimony.
10.7.2008 1:15pm
Bob from Ohio (mail):
Only nuts think Bolton and Miers will be criminally convicted.

The President asserted his privilege. They relied on the assertion privilege. The litigation will decide if they were justified.

But if they were not, it still defeats the mens rea requirement.

"willfully" means something in the statute.

The CofA punted this on the hope it will be moot. Either the committee wil no longer be interested in this after January or possibly, the new President wil withdraw the privilefge assertion (assuming one president can do that regarding a former president).

The courts don't want to get involved in this peeing contest if they can avoid it.
10.7.2008 1:20pm
Sarcastro (www):
[It is my understanding that blanket, preemptive pardons are allowed, and would cause all sorts of fun in the international war crimes prosecution community.]
10.7.2008 1:21pm
Calculated Risk:
A. Zarkov,

Of course Congress has the power and the right to summon any citizen, including members of the "Hollywood Ten" to testify.

That seems pretty obvious.

As a citizen, if you do not approve how Congress uses its investigative powers the remedy is the same as when you do not approve of the laws it passes. Your remedy is at the ballot box.

I know democracy can be a bitch, and all.
10.7.2008 1:25pm
Calculated Risk:
Bob from Ohio,

Not so fast Bob.

Did Miers and Bolton knowingly and purposely ignore a subpoena issued to them by Congress?

Answer: Yes. That is willful.

Think about this. You believe it is justifiable self-defense to shoot someone fleeing your property when it is clear that they are unarmed and are clearly not an imminent threat. You are in a state whose laws say otherwise.

Assuming you have a good faith belief in the legality of your actions, but you are incorrect as a matter of law, are you guilty of manslaughter, or murder?

Answer: murder
10.7.2008 1:32pm
MarkP (mail):
And as a citizen of a constitutional republic, you also have the remedy of a lawsuit if you believe that the Congress has violated the Constitution.

I know that the Rule of Law can be a bitch, and all.

P.S. Calculated Risk is unclear whether Congress' power to "summon any citizen . . . to testify" includes the power to actually FORCE testimony, as opposed to forcing an appearance and permitting the witness to invoke the protections of the Constitution. A little clarity here is in order: Do you believe witnesses should be allowed to invoke the protections of the Constitution against Congress? If so, do you nonetheless insist on the useless formality of a personal invocation of a constitutional privilege? Is your answer the same if the cameras aren't running?
10.7.2008 1:35pm
Oren:
Zarkov, perhaps there is an alternative scheme for compulsion of testimony that is preferable to the current one. I am willing to discuss those schemes and their relative merits.

Under the current state of things, however, Congress has acted well within their powers.
10.7.2008 1:36pm
vassil petrov (mail):
I have never understood what the basis of the idea of "preemtive pardons" is. It seems to me it is a unconstitutional attempt for one president to bind furure presidents and disrupts the power of the courts. If the president thinks a person has done nothing wrong or although done something wrong should go free, he may order the prosecutors not to prosecute hime, may order the attorney general to enter nolle prosequi or if the person is already convicted - may pardon him.
But issuing preemptive pardons is an attempt to bind future presidents and future prosecutors.
10.7.2008 1:37pm
PLR:
Gosh, Oren, it seems like the statute you cite is pretty conclusive. It doesn't have any exceptions for executive privilege or anything. Open and shut. What a shame that the appeals court wasn't aware of the statute when it wrote its opinion.

Post of the day!
10.7.2008 1:38pm
Oren:

It doesn't have any exceptions for executive privilege or anything.
Nor does it have provision for Opposite Day or an option for the subject of a subpoena to chose "dare" instead of "truth". Perhaps a more perfect Congress would have written those exceptions in.
10.7.2008 1:40pm
PLR:

A little clarity here is in order: Do you believe witnesses should be allowed to invoke the protections of the Constitution against Congress? If so, do you nonetheless insist on the useless formality of a personal invocation of a constitutional privilege? Is your answer the same if the cameras aren't running?

What a great point. Since everything that I and my partners do in our waking hours is fully covered by the inviolate attorney-client privilege, none of us will ever need to submit to a deposition again just to go through the useless formality of invoking that privilege. Thanks MarkP!
10.7.2008 1:43pm
Angus:

It doesn't have any exceptions for executive privilege or anything.
Can you point me to the statute or Constitutional provision that establishes executive privilege?
10.7.2008 1:46pm
vassil petrov (mail):
Think about this. You believe it is justifiable self-defense to shoot someone fleeing your property when it is clear that they are unarmed and are clearly not an imminent threat. You are in a state whose laws say otherwise.

Assuming you have a good faith belief in the legality of your actions, but you are incorrect as a matter of law, are you guilty of manslaughter, or murder?

Answer: murder


Yes, but only to the extend that the mistake that there is a self-defense is unjustifiable in terms of the doer's personal knowledge (or lack of the knowledge he is expected to possess given his life or as a professional in certain area).
10.7.2008 1:47pm
Anderson (mail):
Nor does it have provision for Opposite Day

A deficiency I have noted in many statutes.

The decision is in fact a win for Congress; meaningful hearings in the month before the election were not likely anyway, and Congress's subpoena power is clearly upheld.

N.b. that presidential pardons would make it impossible for Miers and Bolton to plead the Fifth (right? check me on this), which means that their non-testimony would rely on either "executive privilege" or "I don't recall."
10.7.2008 1:55pm
Soronel Haetir (mail):
Wouldn't a preemptive pardon be some form of limited amnesty? IIRC the courts have held that the pardon power encompasses amnesty.
10.7.2008 2:05pm
Christopher Cooke (mail):
A pardon for a misdemeanor is not likely. And, I doubt anyone has been prosecuted for ignoring a subpoena when directed to do so by the President.

Besides the pardon is a red herring. It would not prevent Miers and Bolton from having to appear and testify before Congress, it would only immunize them from criminal prosecution for past violations of the law. If they are correct in asserting executive privilege, they will be excused from having to testify, but probably not from having to appear and assert executive privilege in front of Congress. (That, at least, is the law on invoking the 5th Amendment privilege, and Judge Bates clearly thought they would have to do so here).

I tend to agree with the concurring judge, that this can be dealt with by the next Congress/next year.
10.7.2008 2:26pm
Nunzio:

Are these subpoenas about the U.S. Attorney firings, because I've forgotten with all the meltdown in the financial sector.

Do we still have time for this and investigating baseball players for taking steroids? Congress must be very busy.
10.7.2008 2:27pm
Dilan Esper (mail) (www):
This was a terrible opinion in its own right. The Court says that the subpoena expires when the new Congress takes office. However, the Court says it doesn't have to decide whether this moots the case. Why doesn't the Court have to decide that? It seems to me pretty relevant.

Further, and even worse, the Court predicts that even if the case is expedited, the en banc and cert processes will still delay the case. That may or may not be true, but since when are motions panels supposed to predict whether en banc and cert petitions will be filed and if they are filed, what will happen to them? Further, how does the motions panel know that those courts won't grant expedited review?

The Court also says it needs to hear from the new President and the new Congress after the election. Why? The witnesses are in contempt of THIS Congress. Also, by the time the new President and Congress take office, the subpoena, by the Court's own reasoning, will have expired. So why are their views relevant?

Finally, remember that all the district court did is require a privilege log (i.e., a list of the privileged documents and the basis for the privilege claim). Since the law is absolutely clear that a privilege log can be properly required by a court whenever there is a disputed claim of privilege, the merits of this appeal are a slam dunk against the Bush Administration. So the only real reason to refuse expedition is to prevent the case from being decided against the Bush Administration.

This is about as naked a piece of judicial activism as I have seen in quite awhile.
10.7.2008 2:46pm
A. Zarkov (mail):
Oren:

"Under the current state of things, however, Congress has acted well within their powers."


That's right, and it did so in the matter of the Hollywood Ten. Yet those who defied HUAC are regarded as heroes in the Hollywood culture and throughout liberal America. Movies are made extolling their high mindedness such as Woody Allen's The Front. When Allen's character, Howard Prince, says, "Fellas... I don't recognize the right of this committee to ask me these kind of questions. And furthermore, you can all go fuck yourselves," the movie audience cheers. If Miers and Bolton defy Congress, then liberal America will cheer Congress and condemn them.

As a historical note, most of the Hollywood Ten refused to invoke their 5th Amendment privilege, claiming under some bizarre logic that HUAC violated their First Amendment right.
10.7.2008 2:49pm
KeithK (mail):

I have never understood what the basis of the idea of "preemtive pardons" is. It seems to me it is a unconstitutional attempt for one president to bind furure presidents and disrupts the power of the courts.


The pardon power essentially is the ability to wipe the slate clean for an individual. It fundamentally trumps the will of the courts and legislature in this regard. I don't see much difference between post- and pre- conviction pardons in this regard.

The pardon power is really pretty sweeping. The only limit on it is political. Which is why outgoing presidents usually issue a bunch of pardons before they leave office.
10.7.2008 2:53pm
Bob from Ohio (mail):
Calculated Risk

You murder analogy fails. Miers and Bolton are not making any judgment whatsoever. The President is asserting executive privilege. That is his privilege, not Miers and Bolton. He can assert or waive as he sees fit, they don't have an option.

The court can (were they so inclined--which they seem not to be) determine whether it will enforce the subpoenas. If they then refuse to testify, they would be in violation of the statute.
10.7.2008 3:06pm
Steve:
I am surprised to learn that an order compelling the production of documents is immediately appealable on the grounds that it constitutes an injunction.
10.7.2008 3:14pm
John M. Perkins (mail):
The best version I've seen/read:

Thomas McGrath's Statement to the House Committee on Un-American Activities (HUAC)


------------------------------------------------------------

After a dead serious consideration of the effects of this committee's work and of my relation to it, I find that for the following reasons I must refuse to cooperate with this body.

In the first place, as a teacher, my first responsibility is to my students. To cooperate with this committee would be to set for them an example of accommodation to forces which can only have, as their end effect, the destruction of education itself. Such accommodation on my part would ruin my value as a teacher, and I am proud to say that a great majority of my students--and I believe this is true of students generally--do not want me to accommodate myself to this committee. In a certain sense, I have no choice in the matter--the students would not want me back in the classroom if I were to take any course of action other than the one I am pursuing.

Secondly, as a teacher, I have a responsibility to the profession itself. We teachers have no professional oath of the sort that doctors take, but there is a kind of unwritten oath which we follow to teach as honestly, fairly and fully as we can. The effect of the committee is destructive of such an ideal, destructive of academic freedom. As Mr. Justice Douglas has said: "This system of spying and surveillance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth." A teacher who will tack and turn with every shift of the political wind cannot be a good teacher. I have never done this myself, nor will I ever. In regard to my teaching I have tried to hold to two guidelines, the first from Chaucer that "gladly will I learn and gladly teach"; the second a paraphrase of the motto of the late General Stilwell: "Illiterati on carborundum."

Thirdly, as a poet I must refuse to cooperate with the committee on what I can only call esthetic grounds. The view of life which we receive through the great works of art is a privileged one--it is a view of life according to probability or necessity, not subject to the chance and accident of our real world and therefore in a sense truer than the life we see lived all around us. I believe that one of the things required of us is to try to give life an esthetic ground, to give it some of the pattern and beauty of art. I have tried as best I can to do this with my own life, and while I do not claim any very great success, it would be anti-climactic, destructive of the pattern of my life, if I were to cooperate with the committee. Then too, poets have been notorious non-cooperators where committees of this sort are concerned. As a traditionalist, I would prefer to take my stand with Marvell, Blake, Shelley and Garcia Lorca rather than with innovators like Mr. Jackson. I do not wish to bring dishonor upon my tribe.

These, then are reasons for refusing to cooperate, but I am aware that none of them is acceptable to the committee. When I was notified to appear here, my first instinct was simply to refuse to answer committee questions out of personal principle and on the grounds of the rights of man and let it go at that. On further consideration, however, I have come to feel that such a stand would be mere self-indulgence and that it would weaken the fight which other witnesses have made to protect the rights guaranteed under our Constitution. Therefore I further refuse to answer the committee on the grounds of the fourth amendment. I regard this committee as usurpers of illegal powers and my enforced appearance here as in the nature of unreasonable search and seizure.

I further refuse on the grounds of the first amendment, which in guaranteeing free speech also guarantees my right to be silent. Although the first amendment expressly forbids any abridgement of this and other freedoms, the committee is illegally engaged in the establishment of a religion of fear. I cannot cooperate with it in this unconstitutional activity. Lastly, it is my duty to refuse to answer this committee, claiming my rights under the fifth amendment as a whole and in all its parts, and understanding that the fifth amendment was inserted in the Constitution to bulwark the first amendment against the activities of committees such as this one, that no one may be forced to bear witness against himself.

*********************
10.7.2008 3:33pm
Oren:

The President is asserting executive privilege. That is his privilege, not Miers and Bolton. He can assert or waive as he sees fit, they don't have an option.

So if any executive officer desires to testify in Congress (perhaps about the misdeeds of the executive itself), the President can forbid them from doing so?
10.7.2008 3:46pm
ejo:
weren't a good hunk of those folks actual communists who just wanted to hide their affiliation with the Party-I guess I won't waste a lot of time mooning over the injustice done to the poor Stalinists back in the day.
10.7.2008 5:25pm
Oren:
"Actual Communists" are still citizens of the USA, last I checked anyway. Since stripping citizenship is unconstitutional, folks like ejo are just going to have to deal with living in a country where people hold stupid and irrational views.
10.7.2008 6:36pm
wm13:
Yes, and folks like Oren are just going to have to deal with living in a country where the courts aren't limited to the literal text of the Constitution (which mentions neither executive privilege nor congressional subpoenas), and take their time deciding disputes. In a decent world, as we all know, the Clinton Administration would not have been allowed to litigate the question of a non-existent "Secret Service privilege" all the way to the Supreme Court; both the agents and the president would have been locked up instantly for defying the court's compulsory process.
10.7.2008 9:44pm
Mark E (mail):
So the legistative branch can go on fishing expeditions and have the courts back them up

But, bribes stored in a freezer by one of the priviledged are off limits according to that same judiciary.
10.7.2008 9:46pm
Psalm91 (mail):
Thanks again to the Federalist Society!
10.7.2008 11:02pm
Oren:

In a decent world, as we all know, the Clinton Administration would not have been allowed to litigate the question of a non-existent "Secret Service privilege" all the way to the Supreme Court;

Well, they have the right to appeal. The higher courts should have dismissed out of hand Slick's absurd theory.

Mark, the warrant for the home (containing the freezer) remains unchallenged. It was the legislative office search that was a sticking point under Speech &Debate.
10.7.2008 11:21pm
Oren:
wm13, the Court did the right thing, IMO. It is for the next Congress to decide whether to revive the issue or not.

As far as your literalist argument, I have no comment other than to say that the first Congress issued subpoenas and they damn well knew what the constitution was supposed to mean.
10.7.2008 11:23pm
mls (www):
Did anyone notice that the per curium opinion failed to address the four factors that are supposed to determine whether a stay is granted (likelihood of success on the merits, irreparable injury, harm to the other party, and the public interest) or to give any explanation as to why the court was granting a stay?
10.8.2008 12:21am
John M. Perkins (mail):
Thomas McGrath was an admitted Communist who wouldn't name names. "Do you know anybody else who is a Communist or who you suspect is a Communist?"
10.8.2008 12:42pm
Dilan Esper (mail) (www):
Did anyone notice that the per curium opinion failed to address the four factors that are supposed to determine whether a stay is granted (likelihood of success on the merits, irreparable injury, harm to the other party, and the public interest) or to give any explanation as to why the court was granting a stay?

I did. Of course, if they had discussed them, they wouldn't have been able to reach the result they wanted to reach.
10.8.2008 1:32pm