And Now the Appeals Court Jumps in the Fray
This is weird. The DC Appeals Court apparently doesn’t want to give Obama time to make a deal between Bush’s minions and the House Judiciary Committee.
After specifically invoking the benefit of "permitting the new President"… "to express [his] views on the merits of the lawsuit" between the House Judiciary Committee and Harriet Miers and John Bolten last fall when it stayed Judge Bates’ ruling knocking down Absolute Immunity, and in spite of the fact that said new President asked for two additional weeks to submit his brief on the debate over Harriet Miers’ testimony, and in spite of the fact that HJC agreed to that two week delay, the DC Appeals panel has ordered DOJ to submit its brief by February 25, half the time the Obama Administration requested.
That’s weird for several reasons. Normally, when the legislature and the executive get into a squabble, the courts like to have them try to resolve the squabble on their own. One of the reasons Obama had wanted two weeks was to try to broker a deal himself. Given reports that such a deal is taking some time, the order to submit briefs this Wednesday makes it much less likely that HJC and Bush’s minions will make a deal before the Appeals Court gets involved again.
The one-week extension also guarantees that Obama will submit his brief before Dawn Johnsen takes over at OLC; her confirmation hearing is scheduled for the same day as the new deadline for the brief. One way Obama could have responded to this suit would be to simply withdraw Steven Bradbury’s audacious memo expanding Absolute Immunity, but that won’t happen before Johnsen takes over.
Now, I have no idea why the Appeals Court is so antsy to get involved here, but there are several possibilities.
It’s possible that they’ve seen Greg Craig’s statement explaining that Obama will not "do anything that would undermine or weaken the institution of the presidency" and they worry that Obama will craft a deal that preserves Absolute Immunity, and they want to prevent that from happening (though why they think John Conyers would agree to such a deal, I have no clue).
It’s possible they’ve read Obama’s Executive Order on Presidential Records–asserting that incumbent Presidents get to decide the Executive Privilege claims of their predecessor–and they believe that that claim puts Bush and his minions in too weak a position, so they’ve decided to press the issue in order to give Bush’s minions a stronger bargaining position.
Or it’s possible that the squabble between two administrations of the executive branch and the legislative branch just looked like so much fun that the Courts wanted to get involved.
In any case, with the Obama Administration brief due on Wednesday, we’ll have a better sense then of what Greg Craig’s statement on Presidential power really means.
EW!
mornin’. expecting snow today here in Western Ma.
…
What’s the worst case scenario here?
And dare i hope, best case?
Worst case is they say Bush owns his privilege and gets to litigate this (though I don’t see how that’s possible). Best case is they say “this Absolute Immunity stuff is bullshit, and oh by the way, Congress has a reserved right to stick their nose into the replacemements of USAs so your EP claim is bogus.”
Thanks EW. As Always, love your insights.
As you know from practice, it is very common for judges not to give either side what they want. Even when both sides have an “assented to” motion for continuance, Judges (and the FRCvP) tell judges they can decide on what they prefer. And they often do, and since judges never have to explain themselves, we never know why.
First question is whether Obama supports absolute immunity. Absolute immunity is a doctrine resulting from an over stretched exception to the ability to nullify the executive privilege. When the governmental interest is at stake, the testimony in question is not national defense or diplomatic secrets, the court found only very narrow grounds for sustaining any executive privilege whatsoever. How this became a doctrine that you don’t even have to show up to testify to claim the privilege escapes me, and will likely escape the view of the court. Is Obama himself in favor of this? Doubtful. Are Bush era lawyers at DOJ in favor of this? Likely.
Second question is the purpose of the delay. Is any delay likely to give Congress the refutation they seek of naked power grabs by the Executive? Is any deal reached between Obama and his DOJ lawyers likely to change the result of the case? No. Letting the case proceed in any form results in a decision narrowing the perceived scope of executive power back to the guidelines of US v. Nixon. Absolute immunity is a doctrine without foundation in the law, as so many Bush era legal arguments share.
EW,
Welcome back. Thanks for this post. One question I have been asking myself is whether Obama is leaning in the direction of BushCo (or appearing to do so)on certain policy issues like ExPrev, Unitary Ex and Absolute Immunity in order to “bust” it open.
To appear to be continuing in the same direction on certain policies should rile Repugs — the thought of Obama having the same kind of power Bush-Cheney used should cause an absolute meltdown with Repugs leading the charges. Sometime Obama will “give” and the whole balance will be restored but it will cause the crack needed to address all the wrongs of the last administration and then no one can scream, “This is all politics.”
So my suggestion is the netroots should continue to scream loudly on these issues. Obama needs us to.
Probably a crazy thought, but it has been on my mind for a few weeks now.
Something along these lines has been on my mind too, comforting to know I’m not alone.w
Let’s hope.
yeah, that would be extra sweet.
As part of a “best case” scenario though, i think i’d like to see someone(s) disbarred or imprisoned…..
that’s probably too much to hope for i guess.
Thanks ew.
digg is open
Great to have you back.
Welcome back EW.
Great on this, but for light amusement I am looking forward to your thoughts on Burris latest and still probably not greatest moves.
Simpler possibility. It’s possible the DC Circuit Appeals Court wants to let the Bush administration off scot free. Consider who’s on it.
I hope they prove me wrong. But that could be the only reason to short-circuit Dawn Johnsen’s looking at the brief.
I smell judicial impeachments in America’s future.
What and who exactly do you mean by “consider who is on it”?
Are you seriously intimating that the DC Circuit has had anything at all to do with the delay on Dawn Johnsen? Because that would be nuts, they don’t.
What in the world out of this makes you smell judicial impeachments, and whom do you foresee being impeached?
Can you specify who is going to lead this impeachment charge?
The DC Court doesn’t have anything to do with Dawn Johnsen’s appointment, but they could have had the courtesy to let the Obama team respond with its own people and not holdovers.
As to smelling impeachment, I think that an investigation of the political impartiality of some judges is in order. Especially on the DC court, which on some issues seems to be serving the interests of the Republican Party instead of that of justice. Or maybe since folks accepted Bush v. Gore, it’s impossible to impeach a judge for serving party before country.
Impeaching judges because you’re suspicious of their political wisdom is an extremely unwise idea.
Either accept that judges should be removed for offenses related to law, or embrace the idea that judges should be appointed for the term of the party in power.
I would be very curious to see the emails between the five majority justices in Bush v. Gore and any of the Bush legal team or prominent Republicans during the period between the November election and the Bush v. Gore decision. Only an impeachment hearing could make those public.
It does not have to do with the fact they were appointed by a political party but they bent the law to advantage that party or hide that party’s crimes in cases of national importance.
Not allowing the Obama administration the time to determine its position on the matter before the Appeals Court seems to me to be one of those instances.
While I suspect that I share your political ideas, I can’t help but thinking that you want to go down a road that leads to someplace well-heated.
The law has proven to be quite flexible and has been bent before and in more than one direction.
we’re thinking along the same lines here.
bamz, only two of the sitting judges on the dc circuit were appointed by dems, rogers by clinton and edwards by carter. the rest of the 13 were appointed by reagan or one of the bushes. that would seem to explain a great deal about this decision.
as for judicial impeachment, i’m with tarheel on this one. the judges involved in the seigelman and minor cases are definitely in line for impeachment, and that’s just off the top of my head.
i might not lead the charge, but i’d be in that movement in a heartbeat. especially given how compromising the dems were – in good faith – and how abusive the repugs were with that good faith in those compromises. w’s choices were almost always highly controversial and stick-in-yer-eye power-grabbing, and they were almost always incompetent or lacking in needed experience and even-handed perspectives.
they stacked the courts with hacks, and the hacks will try to exploit their positions of power. i’d suggest that’s precisely what we’re seeing here. the supremes’ decision of dec. 2000 set the model; we can interpret the law any way we want as long as it gives us the decision our guys need.
just think of it as a version of the bush presidential power doctrine; it’s legal because we say so.
First off the makeup of the circuit has nothing to do with the specific point at issue, only the three judge panel assigned to the matter does. In this case there have been two; the first was Randolph, Ginsburg and Tatel which decided the stay issue, and the second which is currently assigned to the merits of the appeal and is comprised of Karen Henderson, Merrick Garland and Janice Rogers Brown. My point is that it is not “the DC Circuit Appeals Court” that is at issue, talking about “13″ is misleading, it is the specific panel that counts here.
How in the world one makes the leap from this specific case to judicial impeachments, and from there to Siegelman, is beyond me. There may be isolated instances of judges that should be considered for impeachment, and there are a couple down south (one in Texas too) that are probably about ripe, but the wholesale discussion of doing so based on political ideology, which is exactly what was intimated, is absurd and dangerous. That kind of noise is as destructive as that which you complain of, quite frankly, in my opinion more so.
you’re right about the panels, but the appointments of these 13 make it difficult to come up with any 3 for a panel that is not skewed.
true, leaping from this case to impeachment is – at least currently – premature. but i’ve been keeping up with the siegelman and minor cases, which frankly beg for impeachment of both priscilla owen and mark fuller, at the very least. these were fresh on my mind as paul minor’s wife is dying, and although the board of prisons and warden signed off to give him a 3 day furlough, the US DOJ stepped in and has reduced that to 3 hours supervised by armed guards.
this seems beyond a travesty of justice that the doj would interfere with this. could not the judge over-rule this?
at any rate, this is the sort of thing i’m talking about. and yes, randomly advocating impeachment of judges is not wise, especially as it reduces us to those who wanted all the civil and choice right judges to be impeached because of those decisions and not because of abuse of their seats.
Now that I am all pretty much in agreement with.
that would be me
remember, SIXTYSEVEN M%*#@RF&%$@#S, and 4 impeachments on the SCOTUS
but I might let somebody else take over now that the idea is catching on
(wink)
There is another interpretation. The court can see that the so-called doctrine of absolute immunity derived from a misguided analysis of US v. Nixon, and seeks to decide the case before it is mooted.
Unfortunately, Dawn Johnsen is an honorable attorney, who would not bring such a specious argument before a court. In mere moments after she was sworn in, this case would no longer be contested before the court.
That is also why her confirmation has been delayed – by Republicans.
The court should at least let the Obama administration withdraw the contest if it intends to. At the moment it is unclear who is presenting papers to the court, the Obama administration or the Bush administration.
Wouldn’t the simplest interpretation be that the Court has concluded that one side of the case is presenting a meritless argument, and is indicating that it expects any deal reached to resemble the resolution that the Court will require absent a deal?
I must agree. No delay is needed for a meritless argument without foundation in the law.
There is a third doctrine, which only comes forward on the Judicial side.
When the law is unclear, or has been made unclear on purpose, it is the duty of the court to clarify the law, so that people do not end up with criminal exposure for their acts. In the case where a lawyer advises a client not to testify on the grounds of absolute immunity, both the lawyer and the client are in trouble. The lawyer has advised the client on a course of action contrary to the law. The client is liable for contempt.
The court must act to keep people out of trouble for using a misguided, unfounded, and indefensible interpretation of the law.
EW,
Its posts like this that keep me coming back first thing every morning. Thanks for these insights!
Bob in HI
Hear, hear!
Well, it is theoretically possible, i guess, that the court has the inclination to actually preserve absolute immunity. Personally I find this, from a legal standpoint, extremely unlikely, but if you are hellbent on listing all the possibilities, that is one.
My take:
The DC Appeals Court is sending these messages by shortening the delay to this coming Wednesday:
1. Greg Craig – Obama Administration: Shit or get off the pot! If you don’t want us to rule on the absolutely specicious bullshit “Absolute Immunity” crock and set a “forever” nope-nada-never precedent, then stand fookin’ up and reaffirm Congress’s powers to legitimately subpoena Executive branch witnessess.
2. Turdblossom, Miers, Bolton and the “former” Bush/Cheney criminalistas: Get your fookin’ butts up to Conyer’s committee before we stick this absurdity up your ass!
3. Conyers: Sic ‘em!
Basically, I read this as a big shout out for Conyers and Congress, and a major diss to Greg Craig/Team Obama and an even more major diss to the former Administration criminalistas.
Doh! I should probably use that spellcheck thingie:
specicious = specious
witnessess = witnesses
ssssssssssss
spell check is just another way for the Man to hold us down
fight the power
(wink)
And if I offend the dignitude of the almighty spellcheckers, so be it! *g*
Hey, I do the spellchucking around here!
You be the Chief Spellchucklehead? *g*
Aye.
11 – I think there might be an element of that.
Let’s start with the fact that during the campaign, Obama specifically called Bush’s position, that the parties and the documents were completely exempt from appearance and production, “misguided.” Then it was about October that the Circuit Court ruled to grant a stay until Obama was in place. So it is not like Obama hasn’t had time to fish or cut bait on what his decision as to the absolute exemption is, or is not. And the panel has not doubt had time to figure out their thoughts.
In this case, which has been dragging and dragging, the parties really aren’t that much different than in any other civil type of litigation and one function of the court is to say “enough bickering kids, I’m counting to 10 and if you don’t have it sorted out by then, I’m coming in and doing it for you.
The mantra from Obama’s crew about all the complex issues is kind of whiffle ball when you look at the issue before the court. It’s not whether or not any particular piece of information is subject to privilege from disclosure, it’s whether or not persons and documents are exempt from production without particularizations, just by virtue of the Executive saying they are. This isn’t a difficult or complex issue that needs beaucoup oodles of negotiation.
On just what they will or won’t say when they get to Congress, or the reasoning used for claiming exemption from production on docs – heck yeah, that might be pretty tough to work out.
I think the court maybe tired of being the dumping ground of inept Presidencies and inept Congresses as well. The immoral, illegal and inept actions of both other branches not only keep getting dumped into the Judicial branch, they are positively clogging it up past choke. And instead of giving the courts good lawyers with good judicial temperaments and resources to resolve all the Congressional and Executive screw ups, they just make the Judiciary a politicized dumping grounds for torture enablers, leaving it disenfranchised for the future and underfunded for the tasks at hand.
So I’m not wildly surprised to see the court, that has been waiting for a damn long time and has lots of torture and detainee and corruption etc. still on its dockets to assert itself and let both parties know that enough is enough. They came to the court, they can damn well operate on the court’s schedule, particularly on a single, piddly matter that is not even likely to: a) end at their court (appeals are likely) and b) end the production/tesimony issues (there are all kinds of issues relating to the manner and extent to which EP and other privileges or immunities will be or may be raised in connection with specific documents and specific topics of tesitmony).
Generally, when the court starts turning down procedural consents, it’s bc it is ready to clear its docket on the issue and/or it thinks the parties have gotten a bit out of hand and need a smackdoown on who is actually in charge.
Obama’s Executive ruling on who gets to invoke and noises on Congressional investigations into Executive branch crime really just highlight for the court how much more is getting ready to be dumped on it, while the inept branches create disruption then throw it all to the courts to sort out.
I’d have wanted to direct a well placed kick with the order, which is why it is a good thing I’m not a judge.
Lead, follow or get out of the way.
You might well have followed “inept” with cowardly.
I had a discussion with somebody yesterday on whether or not that was what was going on, or if it were more sinister than that. I basically took the position you laid out, but that was before I knew there was a different panel assigned for the merits than the stay (and thus the discussion @27 above). I don’t know much about Merrick Garland, but he looks solid based on his bio; Janice Rogers Brown is a living breathing nightmare. In California there was, swear to god, a scale of appellate cases: opinions, suspect opinions and then a whole feared category “Brown opinions”. She is nearly always bad news. That probably leaves the gig up to Karen Henderson, who is certainly Republican appointed and conservative leaning, but surprises every now and then. There are worse.
What is interesting if one is to microanalyze this is the highlighted sentence in the scheduling order:
I am not quite sure what to think out of all this. My initial semi-optimism is tempered a bit back to just not knowing WTF is going on.
24 – criminalistas, eh? Pretty good *g*
I like extra “s”-es in “Executive branch witnessess” It gives a sssslithery sssound that sseemssss appropriate.
Sibilants are sooooo super! *g*
Sometimes it’s hard to remember that it isn’t necessarily there by implication anytime Congress is mentioned, but you’re right. It’s probably the most important word and in a long long stream of words, I managed to leave it out.
The linked order signed by the clerk gives several dates, including for reply brief. I thought it was expeditious, perhaps tinged with partisanship, yet, the third specified date is April. Plenty of time. There are going to be traces of what Bush did to DoJ as long as the halflife of politics has impact. The Miers matter, as I understand it, relates more to subornment of the political stripe, rather than metaphorically more auspicious tangibles like torcha, war on stateless terra, and communications Hoovered into the binary silos. A week ago Tulane lawprof SGriffin published the article on informal process domineering by OVP and Potus there; it has elicited notable mention by prof LSolum. I continue to evaluate SG’s article’s recommendations about recourse to remedies thru A5. SG cites CSavage’s book, and chronicles some of the secrecy issues which are still emerging. I look forward to Conyer’s work on the contempt issues.
35 – well I do think that’s a crew that would be happy to smack both the Dems in Congress and the Dem President by showing that they punch the tickets.
If they are going to give a bad ruling, I’m happy for it to be sooner rather than later. If Obama doesn’t want that to happen, it can make it not happen. I understand he has put poltical calculations above almost all else lately, but let’s face it – what is the political fallout to directing that his DOJ withdraw requests to stay the order, that Miers et all at least have to show up (and THEN start asserting their various privileges on everything), reserving objection even?
And I’m not sure what a “bad” ruling would be right now, with Craig making noises about having to protect, not the rule of law, not the Constitution, but rather the powers that have been grabbed for the Presidency. Does Brown et all rule that no one has to show bc the President does have that kind of power? And give Obama that power going forward with the Republicans who are going to want to be obstructing things? Or do they reject it as absurd – is that a “bad” outcome for Obama’s DOJ? That someone tells them Exec branch employees have to actually show up in response to a Congressional subpeona?
What ever it is they are going to do, I just want them to go ahead and do it and another week of Obama hand wringing isn’t likely IMO to make much of an ultimate difference, which is I guess why I tend to see it as more the court just making Congress and the Executive kowtow a bit – whether as a politicized panel who wants to thumb noses at the Dems in both the other branches, or as a generally fed up and ready to move on circuit panel who just want to move the damn thing along.
I don’t think in the end it will matter which it is and I kind of think we do need to move it on and someone needs to be telling Obama that he can’t just keep putting off taking a stand on Exec power.
Totally OT – An interesting read in Vanity Fair’s latest – Farewell to All That: An Oral History of the Bush White House
One of the parts I found particularly compelling was this:
I wrongly posted this on the Al-Haramain post below, dorry, but I still have the same questions:
Hmmm, this post has been up a while and there are still only speculations. Can we assume that no one out there has either a clue, or inside information. Or it’s a lazy Sunday.
Given that the Obama people intervened in the first place — thereby poking the court in the eye — they obviously had something they wanted to say. Under the guise of ‘can’t we all get along’, or perhaps, let’s do a workaround that doesn’t immediately get to the question of unitary executive issues, or perhaps, let bygones be bygones, they must have had one, maybe two moving principles.
Given Obama’s revealed modus to date, on big legal issues (vs rhetorical pronouncements) he has sided with the Bushies, at least by kicking the can down the road. I don’t think he wants Conyers reaming out Rove or anyone else under compelled testimony. And I don’t think he wants to be seen as a wimp when it comes to retaining all those macho executive prerogatives.
But I haven’t a clue, and I can’t believe there isn’t someone out there who can’t move the dialogue forward? Even anon.
Hold on, let me get out my Ouija Board……
dorry = sorry
my spell check wasn’t working ; )
I thought you had a cold.
Stepping down from his position as Chief Spellchucker to become the newly appointed head of the Board of Ouija.
Here’s the deal, the three branches are co-equals, and the only way to force a co-equal to do what you tell it to is to out muscle it. If Congress has the political will to require these people to testify, then it will do so, and they will either testify or assert a valid claim why not, or assert the 5th amendment. If Congress chooses to let the Court decide, then the Court will decide, as long as the administration goes along with the decision. The administration can do anything it wants, as long as Congress and the Court don’t have the political will to stop it from doing so. For the last eight years neither the Congress nor the Court has been willing to stop the administration from doing whatever the hell it wants. I get the feeling the Congress is so emasculated it can no longer enforce its will. The Court is a wild card, it can make a decision but it is up to the administration or the Congress whether or not to obey that decision. This smells to me like the Court is attempting a power grab, but I really doubt the administration is going to play ball. We’ll see…
We now return to our regularly scheduled …