FacebookTwitterGoogle+RedditEmail

Bush Judge Does the Right Thing on Executive Immunity

A federal district judge appointed by President George W. Bush to the bench has done the right thing, ruling definitively this morning that the President’s claim of absolute immunity for his advisors from Congressional oversight and subpoena is “entirely unsupported by existing case law.”

The ruling, by Judge John Bates, is as important as much because of who issued it as it is for its impact upon Congressional investigations into presidential wrongdoing.

Certainly the ruling will open the way for Democrats in Congress to move harder to investigate the abuses of the current administration, which have been stymied by administration refusal to provide witnesses, even to come in and plead the Fifth Amendment protection against self-incrimination.

In the specific case under consideration here, the House Judiciary Committee had been attempting to force the appearance of Josh Bolton, the president’s former chief of staff, and Harriet Miers, former White House legal counsel, to testify about the White House role in the firing of a number of federal prosecutors around the country who were reportedly deemed insufficiently political in their unwillingness to “go after” Democratic elected officials, or to interfere with the election process.

Bush had asserted that all such aides have blanket immunity from Congressional inquiry under the concept of “executive privilege.”

But Judge Bates disagreed, saying that the White House had failed to show a single case in which the courts had held White House aides to be immune from Congressional subpoenas. In a strongly-worded 93-page ruling, he not only said that no such blanket immunity existed, and that aides had to respond to congressional subpoenaes. He also ordered that the White House must hand over requested documents—something that the White House for both of the president’s two terms, has been unwilling to do.

Of course, it is a certainty that the Bush administration will appeal Judge Bates’ ruling to a higher court, and the process could end up dragging on beyond the end of Bush’s term of office, which ends on Jan. 20.  But with this ruling, Congress should feel much more confident about going after those, like Miers, Bolton, Karl Rove (recently cited for contempt of Congress himself) and others, who refuse orders to appear and testify. Congress should also be more willing to consider using its own power of inherent contempt to go after such witnesses by having their own officers arrest and jail recalcitrants.

The other important thing about Judge Bates’ ruling is that it suggests, happily, that there are principled Republicans, even among the slew of so-called conservative “constructionist” judges that Bush has been larding the federal bench with, from the district level to the Supreme Court.  At least some of these judges, apparently, once confirmed in their lifetime offices, do take their oaths of office to uphold the Constitution seriously.  Judge Bates (who, though I didn’t know him personally, attended Wesleyan University in Connecticut at the same time I did, graduating in 1968) worked as a deputy independent counsel in the Whitewater Investigation of President Bill Clinton, which was an obvious political plus in his gaining a federal judgeship nomination by the Bush White House. In 2006 he was also appointed by Chief Justice John Roberts to serve on the secret Foreign Intelligence Surveillance Court that is supposed to oversee domestic spying activities of the National Security Agency.

I am assuming the best of Judge Bates, i.e. that he ruled based on his reading of the Constitution and court precedent. But of course it could also be that this ruling is a sign that Bush judicial appointees are reading the political handwriting on the wall: that the Bush era of seeking to aggrandize absolute executive power is coming to an end. With the president’s public support dwindling to just 21 percent, and with all signs pointing to a big Democratic win in upcoming Congressional elections, not to mention a possible Democratic president in the White House this November, we may start to see at least some Bush-appointed judges concluding that supinely acceding to the wishes of the Bush/Cheney White House may not be the wisest career move for anyone hoping to move up to a higher court.

Whatever the reasons for this important decision, I commend Judge Bates for upholding the Constitution, and its all-important establishment of three separate, co-equal branches of government.

Now if only Democrats in Congress would do the same thing…

DAVE LINDORFF is a Philadelphia-based journalist and columnist. His latest book is "The Case for Impeachment" (St. Martin’s Press, 2006 and now available in paperback edition). Because of a clerical error and his own inattention to bureaucratic detail, he graduated from Wesleyan University in 1972. His work is available at www.thiscantbehappening.net

 

 


More articles by:

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

July 19, 2018
Rajai R. Masri
The West’s Potential Symbiotic Contributions to Freeing a Closed Muslim Mind
Jennifer Matsui
The Blue Pill Presidency
Ryan LaMothe
The Moral and Spiritual Bankruptcy of White Evangelicals
Paul Tritschler
Negative Capability: a Force for Change?
Patrick Bond
State of the BRICS Class Struggle: ‘Social Dialogue’ Reform Frustrations
Rev. William Alberts
A Well-Kept United Methodist Church Secret
Raouf Halaby
Joseph Harsch, Robert Fisk, Franklin Lamb: Three of the Very Best
George Ochenski
He Speaks From Experience: Max Baucus on “Squandered Leadership”
Ted Rall
Right Now, It Looks Like Trump Will Win in 2020
David Swanson
The Intelligence Community Is Neither
Andrew Moss
Chaos or Community in Immigration Policy
Kim Scipes
Where Do We Go From Here? How Do We Get There?
July 18, 2018
Bruce E. Levine
Politics and Psychiatry: the Cost of the Trauma Cover-Up
Frank Stricker
The Crummy Good Economy and the New Serfdom
Linda Ford
Red Fawn Fallis and the Felony of Being Attacked by Cops
David Mattson
Entrusting Grizzlies to a Basket of Deplorables?
Stephen F. Eisenman
Want Gun Control? Arm the Left (It Worked Before)
CJ Hopkins
Trump’s Treasonous Traitor Summit or: How Liberals Learned to Stop Worrying and Love the New McCarthyism
Patrick Bond
State of the BRICS Class Struggle: Repression, Austerity and Worker Militancy
Dan Corjescu
The USA and Russia: Two Sides of the Same Criminal Corporate Coin
The Hudson Report
How Argentina Got the Biggest Loan in the History of the IMF
Kenn Orphan
You Call This Treason?
Max Parry
Ukraine’s Anti-Roma Pogroms Ignored as Russia is Blamed for Global Far Right Resurgence
Ed Meek
Acts of Resistance
July 17, 2018
Conn Hallinan
Trump & The Big Bad Bugs
Robert Hunziker
Trump Kills Science, Nature Strikes Back
John Grant
The Politics of Cruelty
Kenneth Surin
Calculated Buffoonery: Trump in the UK
Binoy Kampmark
Helsinki Theatrics: Trump Meets Putin
Patrick Bond
BRICS From Above, Seen Critically From Below
Jim Kavanagh
Fighting Fake Stories: The New Yorker, Israel and Obama
Daniel Falcone
Chomsky on the Trump NATO Ruse
W. T. Whitney
Oil Underground in Neuquén, Argentina – and a New US Military Base There
Doug Rawlings
Ken Burns’ “The Vietnam War” was Nominated for an Emmy, Does It Deserve It?
Rajan Menon
The United States of Inequality
Thomas Knapp
Have Mueller and Rosenstein Finally Gone Too Far?
Cesar Chelala
An Insatiable Salesman
Dean Baker
Truth, Trump and the Washington Post
Mel Gurtov
Human Rights Trumped
Binoy Kampmark
Putin’s Football Gambit: How the World Cup Paid Off
July 16, 2018
Sheldon Richman
Trump Turns to Gaza as Middle East Deal of the Century Collapses
Charles Pierson
Kirstjen Nielsen Just Wants to Protect You
Brett Wilkins
The Lydda Death March and the Israeli State of Denial
Patrick Cockburn
Trump Knows That the US Can Exercise More Power in a UK Weakened by Brexit
Robert Fisk
The Fisherman of Sarajevo Told Tales Past Wars and Wars to Come
FacebookTwitterGoogle+RedditEmail