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).

December 18, 2018
Charles Pierson
Where No Corn Has Grown Before: Better Living Through Climate Change?
Evaggelos Vallianatos
The Waters of American Democracy
Patrick Cockburn
Will Anger in Washington Over the Murder of Khashoggi End the War in Yemen?
George Ochenski
Trump is on the Ropes, But the Pillage of Natural Resources Continues
Farzana Versey
Tribals, Missionaries and Hindutva
Robert Hunziker
Is COP24 One More Big Bust?
David Macaray
The Truth About Nursing Homes
Nino Pagliccia
Have the Russian Military Aircrafts in Venezuela Breached the Door to “America’s Backyard”?
Paul Edwards
Make America Grate Again
David Rosnick
The Impact of OPEC on Climate Change
Binoy Kampmark
The Kosovo Blunder: Moving Towards a Standing Army
Andrew Stewart
Shine a Light for Immigration Rights in Providence
December 17, 2018
Susan Abulhawa
Marc Lamont Hill’s Detractors are the True Anti-Semites
Jake Palmer
Viktor Orban, Trump and the Populist Battle Over Public Space
Martha Rosenberg
Big Pharma Fights Proposal to Keep It From Looting Medicare
David Rosen
December 17th: International Day to End Violence against Sex Workers
Binoy Kampmark
The Case that Dare Not Speak Its Name: the Conviction of Cardinal Pell
Dave Lindorff
Making Trump and Other Climate Criminals Pay
Bill Martin
Seeing Yellow
Julian Vigo
The World Google Controls and Surveillance Capitalism
ANIS SHIVANI
What is Neoliberalism?
James Haught
Evangelicals Vote, “Nones” Falter
Vacy Vlanza
The Australian Prime Minister’s Rapture for Jerusalem
Martin Billheimer
Late Year’s Hits for the Hanging Sock
Weekend Edition
December 14, 2018
Friday - Sunday
Andrew Levine
A Tale of Two Cities
Peter Linebaugh
The Significance of The Common Wind
Bruce E. Levine
The Ketamine Chorus: NYT Trumpets New Anti-Suicide Drug
Jeffrey St. Clair
Roaming Charges: Fathers and Sons, Bushes and Bin Ladens
Kathy Deacon
Coffee, Social Stratification and the Retail Sector in a Small Maritime Village
Nick Pemberton
Praise For America’s Second Leading Intellectual
Robert Hunziker
The Yellow Vest Insurgency – What’s Next?
Patrick Cockburn
The Yemeni Dead: Six Times Higher Than Previously Reported
Nick Alexandrov
George H. W. Bush: Another Eulogy
Brian Cloughley
Principles and Morality Versus Cash and Profit? No Contest
Michael F. Duggan
Climate Change and the Limits of Reason
Victor Grossman
Sighs of Relief in Germany
Ron Jacobs
A Propagandist of Privatization
Robert Fantina
What Does Beto Have Against the Palestinians?
Richard Falk – Daniel Falcone
Sartre, Said, Chomsky and the Meaning of the Public Intellectual
Andrew Glikson
Crimes Against the Earth
Robert Fisk
The Parasitic Relationship Between Power and the American Media
Stephen Cooper
When Will Journalism Grapple With the Ethics of Interviewing Mentally Ill Arrestees?
Jill Richardson
A War on Science, Morals and Law
Ron Jacobs
A Propagandist of Privatization
Evaggelos Vallianatos
It’s Not Easy Being Greek
FacebookTwitterGoogle+RedditEmail