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And Now the Appeals Court Jumps in the Fray

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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).

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Rove's "Renewed" Privilege Assertion: Is It Absolute Immunity or Executive Privilege?

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Thanks to MadDog for finding someone besides Gloria Borger discussing Bush’s recent letter reasserting his support for Rove to blow off Congress.

It’s unclear, from the reporting, whether the letter reasserts absolute immunity or asserts, for the first time, old-fashioned executive privilege regarding the information Conyers subpoenaed Rove to testify about. The WSJ speaks clearly in terms of "renewed assertion," suggesting Bush is making the same argument that he did earlier for Rove, that presidential aides can simply blow off Congressional subpoenas pertaining to their official duties. 

Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance.

But in an interview with the WaPo, Luskin clearly discusses executive privilege.

Robert D. Luskin, an attorney for Rove, said his client will "abide by a final decision from the courts." Luskin noted that Bush, in a letter to Rove, recently reasserted executive privilege.

"It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."

I wouldn’t make too much of that, though, because Luskin has very consistently tried to normalize the radical assertion of absolute immunity Rove relied on last year by talking in more general terms of privilege.

So thus far, we know Rove has a new piece of paper, but we don’t know what is on that paper.

And that could make all the difference between whether we get Rove testimony within hours of Holder taking over at DOJ, or whether Rove’s testimony gets litigated for some time going forward. Here’s why (for background read this post and this post). What follows is my NAL description–those of you with real credentials here, feel free to correct me where I screw this up.

Executive privilege is a constitutionally recognized privilege for the President to shield certain topics from the scrutiny of the other branches, the idea being that Courts or Congress should not be able to snoop into the Executive’s doings in matters that they have no constitutionally recognized business snooping in. Read more →

al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

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al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

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Obama's DOJ Nominees through the Lens of Bush's OLC

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Obama just announced several new nominations for DOJ. I thought I’d look at the two most notable appointments from the perspective of their response to Bush’s DOJ.

As expected, Obama nominated Elena Kagan to be Solicitor General, in what is almost certainly a stepping stone to a SCOTUS appointment for her.

Kagan, as Dean of Harvard Law School, is the person who hired Jack Goldsmith after he left Bush’s DOJ. Here’s what Kagan had to say about that appointment. 

 "Jack Goldsmith is a bold and creative thinker whose scholarship and teaching will enrich the Law School immeasurably," said Kagan. "His talents and energy will help to ensure that Harvard remains the premiere place to study international and comparative law."

Now, I’m not entirely opposed to hiring people like Goldsmith in academia; my sense is his scholarship–unlike that of John Yoo–is at least internally consistent, even if I disagree with it. One wonders, though, whether Kagan thought she was getting someone who approved of Bush’s torture and wiretapping, or someone who disapproved of it?

Dawn Johnsen, whom Obama has appointed to head OLC, has been much more critical of Bush’s own OLC. After the Yoo memo was leaked in 2004, she was one of a number of former OLC lawyers who signed the Principles to Guide the Office of Legal Counsel, an attempt to prevent similar misuses of the OLC advisory process. More recently, Johnsen testified before Russ Feingold’s "Secret Law" hearing. Here’s her criticism of the way the Bush Administration used secrecy to bypass statute:

The Bush Administration has not complied with this public notice standard and has operated in extraordinary secrecy, generally and with regard to its interrogation policy. Again, the Administration kept secret OLC’s determination that the President had the constitutional authority to violate a federal statutory ban on torture, in an opinion that did not evaluate Congress’s competing constitutional authorities or the most relevant Supreme Court precedent. The public learned of this determination only through a leak almost two years after OLC issued its written opinion and after the Administration began engaging in unlawful interrogations.

Rather than acknowledge it is asserting the authority to act contrary to a federal statute, the Bush Administration often claims it is simply “interpreting” the statutory provision—sometimes inconsistent with the best reading of the text and legislative intent—to avoid a conflict with the Administration’s expansive view of the President’s powers. The Administration cites for support to the Read more →