BREAKING: Judge Bates Rules for the House

/in /by

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 so that these claims of privilege can be evaluated by Congress. We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims. We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September. [my emphasis]

Note Conyers’ reference to "other witnesses" who relied on the absolute immunity. He’s thinking of Rove, I assure you.

Update: Here’s Pelosi.

As public officials, we take an oath of office to uphold the Constitution seriously and today’s landmark ruling by the U.S. District Court is a great victory for the American people, the rule of law and balance of power. We must restore our nation’s fundamental system of checks and balances, and today’s ruling begins to restore that balance.

As I told the House of Representatives in February when we passed the resolution authorizing this court case, congressional oversight is an institutional obligation to ensure against abuse of power. And when there are credible allegations that law enforcement has been politicized, the need for congressional oversight is at its greatest.

This decision should send a clear signal to the Bush Administration that it must cooperate fully with Congress and that former Administration officials Harriet Miers and Karl Rove must testify before Congress.

Note that she’s nowhere near as coy as Conyers is–this ruling has even greater effect on Rove than it does on Miers. 

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  2. perris says:

    so what happens if they refuse anyway?

    nothing, that’s what, gates already told us he will not prefer charges

    and get THIS;

    a job for Marcy;
    rove does not use executive privilege to defy subpoena, he just defies it on his own behalf

    HE JUST DEFIES SUBPOENA BECAUSE CONGRESS WILL DO NOTHING ABOUT IT

    • perris says:

      ROVE: I have not exerted any personal privilege on this. The White House has said we want to stand up for the doctrine of separation of powers and for the right of the president to not have his aides and former aides called up at the convenience of the Congress for no good reason at all.

      rove is simply not showing up, for no reason what so ever, simply because nobody is going to do anything about it

    • cbl2 says:

      your “get this” link doesn’t work –

      is this the job for Marcy you were referencing ? I certainly thought of her when I saw it

  4. victoria2dc says:

    But I think a very likely possibility is that Bates will come back and say, “I don’t have to rule because Congress hasn’t exhausted all its means to get Miers and Bolten to testify themselves, using inherent contempt.” And if that happens, just before the House returns to vote as a body on Rove’s contempt, a Bush appointee will have basically told Congress to go test drive its inherent contempt powers. If all this happens, then I expect they will vote to use inherent contempt, not statutory contempt, with Rove.

    Well, the judge did the right thing. So EW – does this mean that they could ask for the vote on inherent contempt with no further appeals and waiting for anything else to happen? I think that’s what you’re saying, but want to make sure I have it right.

    • emptywheel says:

      I suspect Luskin and Conyers will be on the phone before the end of the day. We’ll see what Luskin says then. But Rove is MUCH more exposed than Miers, since Miers at least has an underlying EP claim to protect her. The SOLE reason Rove didn’t show was this absolute immunity BS.

      • victoria2dc says:

        I suspect Luskin and Conyers will be on the phone before the end of the day. We’ll see what Luskin says then. But Rove is MUCH more exposed than Miers, since Miers at least has an underlying EP claim to protect her. The SOLE reason Rove didn’t show was this absolute immunity BS.

        Yeah… that makes sense. Thank you EW.

      • perris says:

        Miers at least has an underlying EP claim to protect her

        but congress should act anyway, she HAS to show up to invoke her privilege and they need to jail her and let everyone know in NO UNCERTAIN TERMS that they cannot make their own law whenever the choose

    • PetePierce says:

      This has nothing to do legally with the power that they had from the moment they voted for contempt to invoke inherent contempt. And while I’m very surprised Bates’ law clerk did the right thing and Bates signed the opinion, surely no one here doubts that this is just beginning. It’s certainly going to be appealed by DOJ to the D.C. Circuit.

      Rove’s case is a separate case. In case it’s escaped anyone Pelosi the imbecile bitch is delaying a vote on Rove’s case so she can help Bush run out the clock. For no good reason whatsoever, Pelosi is delaying a vote on contempt for Rove after the HJC vote yesterday as long as she can.

      So what do we have?

      1) A district court ruling that is going to be appealed by DOJ to the D.C. Circuit(lawyuhs for Miers and Bolten
      forthwith)
      2) We have a case that is sure to draw some interesting amicus briefs.
      3) We have a case that will certainly then be appealed to the Supreme Court and if it were to be heard on an emergency basis you might get a ruling from them early next year unless the D.C. Circuit were to take oral arguments (will they be done in secret on the motion of the government?) I wouldn’t put it past them but if the D.C. Circuit doesn’t grant an expedited schedule you’re looking for this to be resolved by the Supreme Court well into Obama’s term.

      There are two other important decisions pending:

      1) The case filed by ACLU in the SDNY against the PAA(the FISA bill that your representative and your senator with all probability rolled over and gave to Bush)
      2) A motion filed by the government in the FISC to
      review the new wiretapping law in secret.

      Ya see your government wants you to know as much about how it runs as Kim Jon Il does. While most of the US population isn’t in prison and isn’t living in a box with Our Leader’s picture on the wall and none of those electronic toys you love and no Mac Book Pro or Win Server 2008 in every pot, just give it a little time. You’ll be livin’ da vida loca from North Korea soon enough.

  5. jayt says:

    while at first blush, it might seem that the possibility of the use of inherent contempt power against Rove might now be curbed, I could see how it might also cut the other way. i.e. – A Court has already ruled, so rather than running Rove through the entire legal process, let’s just take a vote based upon Judge Bates’ holding.

  6. cobernicus says:

    Since the legislative branch is either dormant or ineffective, our only hope to preserve the constitution is the judiciary. The results here are mixed. Along with your good news, we have this.

    Keep the pressure on and call on all of us when you need help.

  7. DefendOurConstitution says:

    Don’t get too excited that anyone (Myers, Bolten or Rove) will testify anytime soon. This ruling will be overturned on appeal by SCOTUS. Scalia will write the “majority” opinion in 3 words: “Get over it.”

    • ThingsComeUndone says:

      Scalia does not want Obama to have these powers at some point the Supremes will have to start ruling against Bush in order to prevent Obama from having Bush like power.
      The Paranoid Right is more than a little scared of a Black Man. They do not want that.

    • jayt says:

      Meanwhile, they are bitching because McCain is stubborn and refuses to listen to advice, or too dense to fully understand said messaging advice.

      No need to worry about the vote of any member of The Supremes – with the absolute and outcome-determinative exception of Justice Kennedy.

      cbl2@12 – do recall that Madame Speaker said they wouldn’t vote until September

      I got no problem with that. In fact, schedule the vote for the day soonest available after the R convention…

    • readerOfTeaLeaves says:

      I understand the frustration and exasperation behind this, but the fact that THIS judge made the ruling, in very clear language, means a lot.

      The logic of this appears to be airtight.
      EW, thanks so much for digging in the weeds – this makes a ton of sense and it’s now more firmly confirming my hunch that Congress has been waiting to line up its ducks.

      Also, for larger social context, Isikoff’s latest at Newsweek.com now raises the whole, “Who is possibly extorting the West with threats of terrorism in order to call off criminal investigations” — and also, Joe Klein appears to be fed up with being bullied by The War Party and it doesn’t look like he’s going to get too many cocktail weenies in the short term.

      Did Neptune just move to a new house? Is there some cosmic, gravitational force at work realigning things somewhere…? Because this is a strange confluence of shifts.

      Again, thx enormously for your dedicated, determined, invaluable efforts.

      And now, to savor this strange news….

      • peony says:

        Not Neptune, but there is a cycle emerging which has correlations with the second Nixon Administration during the Watergate prosecutions that took place in the aftermath of the break-ins of 1972. Archetypal energies are very rich, complex and multidimensional, but in one aspect, the kind of thing one would see is prosecution, judgment, facing the consequences of one’s actions. This is the configuration that I see as correlating with these current events. We will see more as the configuration becomes closer to exact. Interestingly, Rove has the same configuration impacting his birth chart, which I’ve had my eye on for some time. I thought back then that given the nature of the archetypal forces, Rove would again be having legal problems and would have a more difficult time escaping a reckoning this time. If Rove is going to face the consequences of his actions, this is the kind of vibration that it would occur under. In any event, even if he should escape prosecution, it looks like he’ll be going on a “journey into the depths” which is typically a period of sturm and drang.

  8. perris says:

    from marcy;

    But I think a very likely possibility is that Bates will come back and say, “I don’t have to rule because Congress hasn’t exhausted all its means to get Miers and Bolten to testify themselves, using inherent contempt.” And if that happens, just before the House returns to vote as a body on Rove’s contempt, a Bush appointee will have basically told Congress to go test drive its inherent contempt powers. If all this happens, then I expect they will vote to use inherent contempt, not statutory contempt, with Rove.

    I actually was hoping the judge would come back with that ruling because I really wanted congress to jail these magots

  9. cbl2 says:

    wow. after reading Kagro’s Bates piece, I am simply stunned he did the right thing.

    never stunned by you EW, dazzled, transfixed, edumacated, but never stunned.

    jayt –

    let’s just take a vote based upon Judge Bates’ holding.

    do recall that Madame Speaker said they wouldn’t vote until September (gotta keep that table clean through the Convention doncha know)

  10. JimWhite says:

    From the AP story:

    “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law,” Bates wrote.

    Marcy nails it yet again. Bates ruled on the absolute immunity claim even though almost nobody else was talking about it until after she had posted on it several times.

    Hooray!

  11. DeadLast says:

    What about the long list of others who have showed up to testify but claimed “I want to talk but Fred Fielding says I can’t.” Can they be made to testify?

  14. LS says:

    Why vote? Bates says they have to appear. Schedule a hearing, order them to appear, and let them defy Bates’ ruling.

      • perris says:

        if only they had the balls and if only the president wouldn’t do something about it, which he will

  15. Mary says:

    Well that’s going to put Mukasey in an interesting spot. I could see Rove still fighting appearing, but a gut check on Miers is that this is a court ruling on her issue specifically and she won’t defy it, even if Bush wants her too. Of course, it doesn’t mean she’ll say anything when she shows up, but Bates certainly handed Congress a gift. The next thing to look to will be if he is willing to stay pending appeal or not if Miers appeals.

    Bates has no enforcement mechanism with a recalcitrant AG, but unlike the fuzzys of an IG investigation, refusal to comply with a court ruling is not a wishy washy grounds for being disbarred – that one is pretty spelled out for Miers at least. For Bolton and Rove, I guess you still have what happens to them, esp if Mukasey continues to claim benchwarmer as his highest and best use.

  16. emptywheel says:

    No, this is actually a stronger ruling as it relates to Rove than Miers.

    Rove’s SOLE excuse for not showing up was the absolute immnuity. Harriet still has her EP claims to make.

    What will be interesting is if the WH now tries to invoke EP for Rove.

  17. victoria2dc says:

    Marcy, you say this:

    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.)

    So Bolton will have to turn over ALL redacted docs that the HJC has requested… got that.

    I’m curious as to the meaning of “but not the documents, yet” portion of your statement. If these docs are, in fact, part of the claim of privilege then what about (with Harriet) the lawyer/client privilege with Bush? Does that mean that they could be forced to turn over all Cheney-type docs?

    I know you know the meaning of “yet” as it pertains to this case. Please share a little more with us.

    • emptywheel says:

      Right now, the WH hasn’t even told HJC what documents are responsive to the HJC subpoena and why they won’t turn them over. Bolten will have to do that–give some kind of descrption of the documents so the two sides can argue the privilege claim.

  18. brendanscalling says:

    shit.
    this may mean I’ll have to eat a hat, as I’ve been saying that I will do so if ANYONE faces consequences for ignoring Congress.

    Now I guess I’ll have to see if Pelosi and leadership does anything about it. If they do… well, anyone have any suggestions for tasty chapeaus?

    • ThingsComeUndone says:

      Cut the hat into real small pieces or by an indulgence like the Catholics used to for swearing to eat your hat Blue America could use cash.

    • perris says:

      shit.
      this may mean I’ll have to eat a hat, as I’ve been saying that I will do so if ANYONE faces consequences for ignoring Congress.

      THEY MAKE GUMMY HATS!

      I want in on this bet TOO

      • JimTheCynic says:

        Tasty chapeau or not, I’m still not convinced it’s time to invest large into porcine aviation. I don’t see how Little Georgie will stand to have his Unkle Karl testify under oath — ever.

        As cautiously optimistic as I am (inside I’m doing little dances), I still don’t see Congress forcing the issue through sufficient means (i.e. Inherent Contempt and resulting arrest and detention). I still don’t have faith that pigs really will fly. Unkle Karl will continue free to run the republican elections machine. Unkle Karl will never, ever testify under oath.

        Pigs will continue to be firmly planted on the ground and porcine aviation is just pie in the sky… (pork-pie that is…)

        • PetePierce says:

          The pigs that fly are in danger of midair collisons soon, because the FAA (not the FISA bill) but the plane regulating agency is incomeptent. It’s only a matter of weeks or months.

          And after all the emptywheelers are finished having popcorn and pouring a cold one over this little district court decision, ask yourself when you think these people will be held accountable.

          Look up D.C. Court of Appeals and their FRAP Check out the time table
          Look up Supreme Court of the United States and its Rules Check out the average time table

          Look up Pelosi Nancy Bush Facilitator
          Look Up Pelosi Nancy Basketball Spread Offense to Run Out Clock in the Game

          and please please show me any bar in any state that has ever taken any disciplinary action against a U.S. attorney when it isn’t a tax matter or a bar dues matter. But please don’t try to hold your breath while doing so.

    • readerOfTeaLeaves says:

      Well, some smart Chocolatier or baker could do a very entertaining fundraiser (giving $$ to EW and FDL) making edible hats.

      I’d prefer hazelnut & chocolate for one option.
      And lemon flavored butter cookies made as ‘hats’.

      Bake away, brendanscalling ;-)))

      • BayStateLibrul says:

        July 31st, the trading deadline, and hopefully the beginning of the
        end to the Bush cover-ups…
        I’m happy again (flip-flop)

  20. NorskeFlamethrower says:

    1,720 DAYZ AND THE KILLIN’ GOEZ ON AND ON AND…

    Citizen emptywheel and the Firepup Freedom Fighters:

    A bow in yer direction there Citizen emptywheel…now ken the House Judiciary Committee subpoena Ms. Pelosi ta find out what the White House has on her that has forced ‘er ta run interference for these murderin’ bastards?

    KEEP THE FAITH AND PASS THE AMMUNITION…WE TAKE CARE OF ‘EM HERE AND THEIR GOD’LL GET ‘EM LATER!!

    • Leen says:

      The killin does go on and on. The major networks give the killing 2 minutes per week. the campaign rules even in most of the progressive blogosphere

  21. Quzi says:

    great news! Can’t wait to see the description of documents and see what transpires next. Could Kkkkarl be breaking into a sweat?

    Thank you for your smarts, hard work and tenacity, Marcy!

  22. skdadl says:

    Brava! Bravo!

    (Hope that covers everyone who did the right thing, beginning with EW, who just plain makes my brain feel good.)

    • jayt says:

      ooh, sparks are flying already. One of the military guys admits ordering another witness to not show up despite subpoena and lack of a claim of privilege.

        • jayt says:

          crap – that’s what happens when you’re trying to rely on a Luddite. I got the link through a comment on Christy’s post:

          selise July 31st, 2008 at 7:51 am

          It’s in there…

        • jayt says:

          They just tossed the guy who admitted ordering the other witness to defy subpoena out of the hearing. “We don’t want to hear any more from you.”

          Threw him out of the hearing!

        • jayt says:

          What good did that do? Will he be disciplined by DOD?

          Waxman said (and I do tend to paraphrase)

          “Look, motherfucker, somebody is gonna be found in contempt. I don’t know at the moment whether it’s gonna be you, or the people at DOD who ordered *you* to oder the witness to not show up, or whether it will be them *and* you. I do know that it’s not gonna be the witness who was subpoenaed but put in an untenable situation by you, you toady asshole.”

          And it was actually Chairman Tierney who actually tossed the guy. “We don’t wanna hear any more from you, we don’t wanna have you sitting here stinking up the room. Quit looking at me like that – and get the fuck out”.

          did I mention that I tend to paraphrase?

        • foothillsmike says:

          But they could have either found out who ordered him or some plagerism or at least a fifth

        • jayt says:

          But they could have either found out who ordered him

          They did – UnderSecretary at DOD in charge of legislative affairs, and some unnamed DOD lawyers.

          Jane Harman’s gonna fix it, though, so not to worry.

          “It seems obvious that the civilian side of the DOD, by ordering a properly subpoenaed witness to not show up, that there is something that they didn’t want this witness telling us. Well *I’M* gonna get on the phone with Bob Gates at the conclusion of this hearing and find out just what the hell is going on here!”

          All better now.

        • readerOfTeaLeaves says:

          It seems obvious that the civilian side of the DOD, by ordering a properly subpoenaed witness to not show up, that there is something that they didn’t want this witness telling us. Well *I’M* gonna get on the phone with Bob Gates at the conclusion of this hearing and find out just what the hell is going on here!”

          I’ve bolded what looks like the ‘money quote’ to me. Read Richard Clarke, Isikoff’s latest, Joe Klein’s latest, Scott McClellan’s book — the CIVILIANs in DoD.

          It’s not the Gen Wes Clarks and Odoms perpetuating this venalty. It’s that cabal of CheneyBu$h appointed neocon, think-tank addled ‘civilians’.

        • readerOfTeaLeaves says:

          Are you offering RSS feeds to your time-saving, cogent paraphrases? Cause I’d like to subscribe ;-))

        • perris says:

          They just tossed the guy who admitted ordering the other witness to defy subpoena out of the hearing. “We don’t want to hear any more from you.”

          ME WANTS YOUTUBE!

        • perris says:

          for those having trouble, there is security that prevents the tube to run, you have to click the popup at the top of the browser and allow the active x install

  25. JohnLopresti says:

    This is one decision Glenn Fine’s report on Goodling et al., bolstered in a timely, if partial, way. It should be worthwhile reading some of the lawprof briefs Bates received. His opinion’s opening broadly depicts his concern about the weakening effects ignoring the absolute monarchy of endless war defense administration figures have adopted would have for future resolution of disputes between the political branches. I think questioning Rove about his insight into how it was possible to corrupt the traditional arms-length relationship of the executive’s DOJ. I heard several important voices annotating Whitehouse’s speech about the new org chart for politicizing DOJ but have yet to learn the technical details of the political artisans who elaborated the strategy for purposes of strengthening the President and the hybridDualBranch which is Cheney’s outfit.

    • perris says:

      I imagine just as we would have appealed a ruling we didn’t like, they will do the same

      I wish congress acts in the mean time, jail these traitors and get on with the governance of this once great republic

  27. Mary says:

    20 – I think the sole reason both of them had for not showing up at all was the claim of absolute immunity, so in order to make them show up, the ruling cuts the same. What I was referencing was what happens if they were to refuse to show even with the ruling. Then you have to look to what Mukasey would do (which may or may not be nothing, depending) but since Miers is an attorney, the court can take actions to refer her to the bar and she could definitely be disbarred for failing to comply, no matter what Mukasey does. So what I meant was that an enforcement threat/option outside of DOJ and Congress doesn’t exist for Rove and Bolton like the disbarment sword does for Miers.

    As to what they will testify to if they show up (and if appeal doesn’t derail) Miers would have more areas where she could invoke deliberative privilege or even atty-client aspects of EP with more of a patina of claim, but when you are talking about doing something illegal – like obstructing justice – she has some of the same underlying issues as Rove, although more toeholds for her claims. Just as Rove would have to claim that his discussions with politicos to use the Georgia USAs to go after Seligman for political purposes was in his job description, Miers is going to have to argue that discussions relating to removing USAttys who would not participate in obstruction of justice was in her job description.

    • Ann in AZ says:

      since Miers is an attorney, the court can take actions to refer her to the bar and she could definitely be disbarred for failing to comply, no matter what Mukasey does.

      Wow! Would that be a first? A former Supreme Court nominee being disbarred, that is. Again, WOW!

      • perris says:

        since Miers is an attorney, the court can take actions to refer her to the bar and she could definitely be disbarred for failing to comply, no matter what Mukasey does.

        HURRAYYYYYYYYYY!!!!!!!!!!!

        now we need to “git er done”

      • perris says:

        Wow! Would that be a first? A former Supreme Court nominee being disbarred, that is. Again, WOW!

        as far as I am concerned, every effort should be made wherever and however it can be made to disbarr yoo, that would make every single opinion worthless

        and no, the opinions are not worthless now, they will carry the weight of “affecting a president’s actions” even though all they did was give him an excuse he demanded

        disbarrment does the trick nicely though

    • emptywheel says:

      Oh, I see your point.

      Granted that the WH will probably appeal, but I think Mukasey will think twice before refusing to enforce at this point–as you say, a court order is something else.

      That said, unless they start invoking privilege for Rove, he has to answer all questions–bc, as regards the HJC subpoena, they have not invoked privilege.

      • perris says:

        but I think Mukasey will think twice before refusing to enforce at this point

        muckasey has become brazen and unless he thinks the wheels are falling off he is on board with the president, he is gonna have to think the president and all his claims are already history for him to make a decision on behalf of congress

        imho

  28. Mary says:

    It’s kind of nice of Bates to leave the Members with some homework to do over their August break.

  32. victoria2dc says:

    Quoting EW

    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):

    Can we be so bold to believe that this statement will impact torture, spying and everything else the BushCo has said to their Nixonian-like statement that they can do any damn thing they want?

    Are we getting close to the point that Nancy is going to have to stop herself from making absolutely STUPID STATMENTS on shows like The View? Did anyone watch that video? She is one very bold woman. Making statements like she made on national television on Monday will get her in trouble because everyone knows about the crimes and many of us know that she’s taken impeachment off the table to protect herself.

    Marcy, I spoke to the Staff Director at the House Ethics Committee (Standards or whatever the technical name is) yesterday. He told me that I can either get a member of Congress (anyone who might agree to do it) to submit an ethics violation charge against her or that I can do it myself.

    He also told me that I can ask CREW or the EFF, ACLU or anyone who might be interested in taking this on. I have written most of the documentation. I’ve also been attempting to reach Christine Pelosi to ask her to have a talk with mommy dear (no response) to let her know that she is wrong on this and that if the ethics committee takes an honest look at what she has done, she will lose the case.

    What do you advise re: doing it myself or going to CREW, EFF or the ACLU to ask for their help? I’ve spoken to the EFF in SF and they are interested, but I’m not sure that it falls within their framework. The woman I spoke to told me that they are NOT happy with Nancy and that they would be willing to look at what I’ve prepared.

    Also, knowing that the ethics committee operates in absolute confidentiality, I don’t feel so worried anymore that my actions would impact the elections.

    What do you think? To me, the only real and absolute remedy for all of these crimes is impeachment, and impeachment will not take place unless Nancy is thrown under the bus. Is that necessary? Any results coming through the courts or direct actions from the HJC will not really get them to the point of having to reveal the truth through testimony and the production of docs, will it? Seems that there is no other choice but to act on Nancy.

  33. Ann in AZ says:

    Lots of folks doubting that the courts would rule in favor of the House. Especially the Supreme Court, apparently. OTOH, I can see where the courts would want to protect and maintain the checks and balances and the separation of powers lest the WH trash their powers as much as they have the Congresses’. The powers of the courts are already starting to get eroded, therefore, I think the courts, even the SC, has already sided with the Congress in several instances, including Habeas Corpus, torture, etc. They are at least willing to stand up for their own Constitutional rights and powers.

    • emptywheel says:

      I think that’s one of the reasons why Bates cited Boumediene–to predispose Kennedy to see this his way–though I honestly think Kennedy would, and I honestly think SCOTUS would deny cert on this. They would have to overturn US v Nixon to side with BushCo on this, and I don’t think they’ll do that with President Obama lurking in the wings.

      • perris says:

        I don’t think they’ll do that with President Obama lurking in the wings.

        I agree with that point and made the point that is probably the reason bates decided as he did this time

  34. 4jkb4ia says:

    And they said it would never happen with this judge. It is good to see the system work once in a while.

    (Bonus: when the Karl Rove situation was described to my husband he said that Rove was “in trouble”.)

  35. perris says:

    Can we be so bold to believe that this statement will impact torture, spying and everything else the BushCo has said to their Nixonian-like statement that they can do any damn thing they want?

    let us therefore join hands and hope

  36. NorskeFlamethrower says:

    1,720 DAYZ AND THE KILLIN’ GOEZ ON AND ON AND…

    Citizen emtywheel:

    Can you or any of the legal-Beagle Firepups tell me what Conyers or the progressive Democrats in the Houise ken do to force this issue onto the House calendar before November? Jesus Christ, Rove and the Nazis in the White House sure used the telecoms ta get enough ta compromise every Democrat in a leadership spot…and the next in line ta Pelosi is Stenny the Cappo Hoyer…I’m gettin the feelin’ that we the people have been righteously fucked here and nobody even unsipped their pants!

    KEEP THE FAITH AND PASS THE AMMUNITION, LET’S GET RID OF ALL THE BASTARDS AND START FUCKIN’OVER!!

    • spacefish says:

      I’m gettin the feelin’ that we the people have been righteously fucked here and nobody even unsipped their pants!

      If anybody had unzipped their pants, that would be cauase for impeachment!

  37. MsAnnaNOLA says:

    Great to see the system work. I just wish it worked a little faster. I am eager for true impeachment and accountablity for crimes committed. I have believed since the wireless wiretapping came out that we had to impeach. If we don’t any future president gets the same powers. It sets the stage for all sorts of unconstitutional and illegal activies.

    We the People can’t have it. Our republic requires impeachment.

    • perris says:

      Great to see the system work

      this is not yet the system working, when these people are jailed, forced to testify then the system would have worked

      for now we have a single, they have all the runs, all the innings, the officials on their side and congress willing to do all of nothing

  38. perris says:

    I just had an epiphane;

    I do believe the only reason bates decided for conress is because he is pretty certain obama will be president and he doesn’t want the man to enjoy this power

    his decision will be challenged and stalled till the next president is decided, then the real decision will go according to democrat or republicat elected (or selected) our next president

  39. rwcole says:

    This is a great ruling- MSNBC says that the White House can appeal it and that the appeal decision is unlikely to come before January- so Bush can run out the clock if he wishes.

    • demi says:

      I’ll watch, but that is not what is going to happen.
      Nuh, uh.
      You don’t have to like her, but she is not the evil one here.

  42. jvass says:

    What surprising news. It’s great to finally see the WH admin having to figure out what to do next instead of the other way around. Now Rove clearly doesn’t have a leg to stand on, so what’s he going do to drag it out?

    Too bad we can’t arrest him now for inherent contempt and keep him there over the recess. Tell him “We’ll get back to you in September.”

  43. rwcole says:

    The ruling says that the judge is only dismissing the claim of absolute immunity and that he is taking no position on any specific claims that Miers et al may have.

  44. Leen says:

    Harman counseling us on “what is right and what is wrong”

    “prevention is the problem” Prevention would be served if they whacked those who have committed these sexual crimes.

    • perris says:

      much the same as wouldn’t it be fun if I won the lottery

      on the other hand, no matter how she tried, she cannot game congress, she will fold

      she will have a lawyer to protect her but I think to no avail, me awaits the day meyers is jailed

      • demi says:

        Apples and oranges.
        Not that it wouldn’t be fun to win the lottery, I just think the comparison doesn’t work.

  46. Mary says:

    86 – That’s what I meant about it putting him on the hot seat. This is more about him at this point than almost anyone else. He can be disbarred too if his response to the ruling and the nature of the order doesn’t walk a narrow path.

    From back in Feb:

    Should Congress pass a contempt citation, will you enforce it?

    MUKASEY: A contempt citation of…

    WEXLER: With respect to the subpoenas, with respect to Mr. Bolten?

    MUKASEY: If you’re talking about a contempt citation based on Mr. Bolten’s failure to appear…

    WEXLER: Yes.

    MUKASEY: … in response to a direction by the president that he not appear, the answer is no. Because he can’t violate that request.

    WEXLER: Are you the people’s lawyer, as you said to the Senate, or are you the president’s lawyer?

    MUKASEY: I’m the attorney general of the United States. And it’s my obligation to enforce all legally binding precedent.
    WEXLER: Thank you, Mr. Chairman.

    emph added

    Now he’s got his precedent, so what’s he gonna do? I guess he could scramble like mad for something like a stay of the effect pending appeal and try to keep ducking this until his tenure is over. I’m not on August recess so back to real work – but this has been an interesting development.

    • perris says:

      Now he’s got his precedent, so what’s he gonna do? I guess he could scramble like mad for something like a stay of the effect pending appeal and try to keep ducking this until his tenure is over. I’m not on August recess so back to real work – but this has been an interesting development.

      he has invented new precedent, that which never ever existed, one he invented in his own head, (I know this is a contradiction of terms, but there it is) and he will abide by that new precedent

  47. rwcole says:

    This appears to be one more move in a long chess game that will not end while Clusterfuck is still in office. The clusterfuck lawyers have become experts at obstructing justice with impunity.

    • jvass says:

      I totally agree. They are just trying to run out the clock and get the hell out of there. But with this ruling, doesn’t time seem to be ticking slower? November seems further away for them now…

      • rwcole says:

        Well they have to hold the ball for six months (until January) but that should be no trouble- first they appeal THIS ruling- which could easily take six month all by itself- and then if the appeal fails- they STILL have to litigate Meir’s individual claims of immunity which is a whole new case…

        • jvass says:

          Yes, I agree again! I just hope the Democratic Congress still has the heart and will to pursue them longer after the Bushies are gone.

          BTW, Bolten and Miers are supposed to provide “all non-privileged documents”. I await the initial “We can’t find them” statement, followed by the “We’re still looking. We found some, but not all of them” followed by the “My computer ate them” excuse. That should take us to 2010/11.

  50. Mary says:

    I don’t have time to look at the opinion, but do you guys have the actual order issued with the opinion? I’m wondering who it directs to do what.

    104 – yep, but now there are Consequences and consequences Mukasey, as an ex-judge, understands. If the DC Circuit overrules and Bates stays, etc. then he may be ok wit his made up precedent in his head, but otherwise, and esp depending on the wording of the order, Mukasey is looking at ending his tenure with a bar referral.

    • PetePierce says:

      Mary while on 12/18/01 USC 28 530B survived the Patriot Act and exists still, every bar including Indiana’s has a consistent track record of ignoring it and leaving DOJsters alone.

      The appellate process for this case to a certain cert. vote to take it will last well into the next two years.

      Scalia, Alito, Thomas, Roberts and the swinger Kennedy can’t wait to put their stamp on this one.

      Since no bar has done anything to a dojster in over 25 years, how do you reason any bar including the New York bar is going to do anything to judge Mukasey or any DOJster former or current or future despite the US Code section that is completely and consistently ignored as a matter of fact on the ground in the streets of Indiana and everywhere else.

      DOJsters play by a completely different set of reality rules when it comes to state bars.

    • PetePierce says:

      If it hasn’t been posted before here is a href=”https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0409-49″>Bates Opinion inCivil Action No. 2008-0409
      COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES v. MIERS et al

  51. DWBartoo says:

    Good afternoon, all;

    While this is good news, Bates’ ruling will be appealed.

    ANY action to actually bring Bolten or Miers to account will be postponed until after Bu$h leaves office.

    Rove will also, most likely, not face even the consequence of having to face Congress again, unless reguired to address ‘other’ issues and even, then he might be ‘busy’ being elsewhere.

    My silly question is this: Can King George simply offer ‘blanket’ pardons which anticpate any and all ‘liabilities’ ‘his’ minions might face, forever, especially if claims of ‘National Security’ are invoked?

    • perris says:

      ANY action to actually bring Bolten or Miers to account will be postponed until after Bu$h leaves office.

      and there is the great mistake, they need to jail these two for inherant contempt and they need to damn the president’s presumptive powers which do not exist

      • DWBartoo says:

        Ah perris, but that would require actual spines, and rumor has it, that such accessories are not in fashion this season …

        ;~D

      • PetePierce says:

        The way a cross was supposed to scare a vampire if you want to get John Conyers and Nancy Pelosi, Hoyer, Waxman, and Emanual to have accidents in their pants just use two words

        INHERENT CONTEMPT

        cause it ain’t ever gonna happen with these idiots and this thing would drag out for years but Bush is going to issue pre-emptive pardons for them.

        • DWBartoo says:

          You’ve called it like it is, unfortunately.

          Pathetic.

          And we can expect more of the same, much more, with McSame or without him.

          ‘They’ will never go away now, but everything we cherish well might.

          Were I a gambler, I wouldn’t bet against the likelihood that fascists shall bedevil us, henceforth and evermore.

          Sold out, for popcorn and peanuts …

  52. wwiii says:

    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.

    “Subpoena enforcement” seems pretty definitive to me. I am curious on what grounds Mukasey could refuse to back up the subpoena(s) now. I would be even more curious to see if such a refusal might incline even the feckless Ms. Pelosi to look at impeachment for the AG.

  55. PetePierce says:

    Yes and as I said before I’ve posted 3 valid links. At first preview showed the link as a 404 error but now I understand Preview has that glitch on links you put up if you name them.

    I have posted 3 straight links to the opinion that DOJ’s appellate division is now appealing. I don’t have appellate briefs yet because the bastards haven’t “crafted” them. Lawyers craft and doctors write and if you’re both you do whatever when you’re whatever.

  56. karnak12 says:

    Well she sure does talk a good talk:

    “As public officials, we take an oath of office to uphold the Constitution seriously and today’s landmark ruling by the U.S. District Court is a great victory for the American people, the rule of law and balance of power.” (emphasis mine)

    The walk, not so much…

    • PetePierce says:

      She don’t do nothin’ as to the walk. Note that she has

      Inherent contempt Off her table

      She is stalling on any proceedings against Rove–even a vote of the House

  57. PetePierce says:

    Just to be clear there is a code section that mandates that any government lawyer including the King’s Star Chamber at DOJ is subject to state bar discipline, however all bars ignore it including Christy Hardin Smith’s bar in West Virginia. I defy anyone to cite me an example of State Bar discipline for a DOJster that is not a dues related slap on the writst. Please show me.

    Even when a DOJster is rarely federally convicted the bar seldom takes action against them.

    The law on the ole books is:

    28 USC § 530B

    The US Attorney, John D.R. Atchison, who hung himself a few months ago in the fair city of Milan, Michigan had no bar action taken because he was pending trial by the state of Michigan as a sexual predator.

    The geniuses at DOJ/BOP in Michigan had him taken off the suicide watch after he tried to kill himself in the county jail.

    The law all bar associations ignore is this one:

    TITLE 28 > PART II > CHAPTER 31 > § 530BPrev | Next § 530B. Ethical standards for attorneys for the Government
    How Current is This? (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.
    (b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.
    (c) As used in this section, the term “attorney for the Government” includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.

    This federal law is ignored by every state bar association. So if anyone uses the phrase bar referral including members of Senate Judiciary, posters here, or Glenn Fine you’re whistling up a rope. It will not happen.

      • PetePierce says:

        I was dead wrong about my guess of Bates’ decision. I wish I weren’t so cynical but I made the same educated guess based on his consistent record in key opinions he has issued both in the district court and the FISA court just as I try to make an educated guess about whether Brent Farvre will be on the field for the Vikings against the Pack or on the field/bench for the pack against the Vikings when that first game is played.

        But unless some extraordinary timing occurs, the DOJ is going to lawyer for Rove if they finally vote contempt in the House, and for Miers and Bolten until the cows come home and most of us have the appreciation that unless there is an expedited schedule appeals take an average of several months if you average the D.C. Circuit’s timetable, likewise the Supreme Court.

        One thing that I wish anyone including Marcy would clear up for me. When Marcy talks to Conyers does she ever ask him why he is so afraid of inherent contempt? It’s been asked before and Conyers hasn’t answered that.

        • DWBartoo says:

          As to Bates, as an individual, his reactions are far less predictable, for many reasons than the behaviors of entities such as bar associations, and until you are proven wrong in those predictions (realizing that your concerns might prick the conscience of a few, some or many) I shall consider you ‘correct’, Pete.

          ;~D