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BREAKING: HJC Wins Round One of Contempt of Congress Case

The House Judiciary Committee has won the first round of its lawsuit against the White House over contempt of Congress in House Judiciary Committee v. Harriet Miers et al.

From the order:

Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff; and Ms. Miers may invoke executive privilege in response to specific questions as appropriate.

and that. . .

Joshua Bolten and Ms. Miers shall produce all non-privileged documents requested by the applicable subpoenas and shall provide to plaintiff a specific description of any documents withheld from production on the basis of executive privilege consistent with the terms of the Memorandum Opinion issued on this date

The ruling is the latest in an ongoing battle between Congress and the White House, to have senior aides testify about the U.S. attorney firings.

After looking over the Opinion, Federal Judge John Bates lays out protocol for Congressional subpoenas, stating that while there may be perfectly legitimate claims of executive privilege, a subpoena from Congress can't just be ignored-- and if it is, Congress has a right to sue for failure to respond.

But as far as those claims of executive privilege go, the questions of their validity is still on the table. The Opinion specifically states that the Court "expresses no view on such claims," but it does go so far as to demand that the White House produce specific descriptions of all documents that relate to the claim of executive privilege. This list of descriptions, often called a "privilege log," helps lift the veil on the swath of documents that are being considered under the Administration's privilege claim.

So in short, the White House can continue to claim executive privilege, and Congress can continue to sue them on the legitimacy of the claims. Unless the two parties can work something out, around and around we go.


Comments (43)

Can everyone now admit that the House did the right thing here by using this opportunity to make the first dent in the theory of the unitary executive instead of wasting time arresting these two or starting impeachment hearings that wouldn't have a chance to finish or whatever other fire-alarm remedy folks here were clamoring for instead of going through the established and effective (if frustratingly slow) legal process?

Yay!! But these pigs...these cockroaches...will keep squirming like the worms that they are until they're in leg irons.

It will require some itsy-bitsy leg-irons for the cockroaches and you probably need to rethink your worm-strategy.

Damn librul activist judges. How dare they uphold the rule of law.

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Oh Karllllllllll!

The biggest reason the Bushies needed a second term was to give them time to destroy evidence of crimes they committed during the first term, which is not to suggest that they aren't still committing crimes. Anyway, I'm certain the Executive paper shredders run 24/7. Abuse of power as an alternative lifestyle.

There's no better "paper shredder" than an email server that "breaks" and loses months, if not years, of email.

Lotus Notes, the system put in place by the Clintons, is elderly but quite reliable and secure. This is because it is really a database under the covers. EVERYTHING is encrypted, much painfully so, so that getting data off can be a hassle unless done through system tools. On the other hand, it's widely used through government and big business because it's so hard to lose messages.

Microsoft Exchange, on the other hand, is a message handling system that has much lower standards for reliability and is widely known to be that way.

It should come as no suprise that immediately upon taking office, Bush scrapped the rather expensive, complete, and secure email system (Lotus Notes) put in by Clinton and replaced it with a new Microsoft Exchange system that could be easily bypassed and have messages disappear.

Plausible Deniability is the main issue in all scandals. There's no better deniability that saying, "I didn't get that email".

Or as an alternative, the RNC lets your staff use a mail server that's outside the WH backup scheme. In the absence of documented evidence, when witnesses are finally compelled to testify after years of stalling tactics, they can probably claim to have no recollection and only be committing perjury about half the time.

This perspective only addresses the incoming and outgoing emails in residence on the WH computers, I think it is safe to assume that the "other end(s)" of both incoming and outgoing emails represents a myriad number of opportunities to discover the truth. Whoever sent emails TO the WH that were destroyed may very well still have them hiding in their PC's guts, just as so many who RECEIVED emails from the WH still retain those copies.

Certainly there have been many felonious deletions on that "other end" but just the sheer numbers of deleted WH emails suggests there is a plethora of evidence readily available, if the proper subpoenas can be promulgated by the proper authorities.

There's a digital trail "out there" at both the receiving and sending mechanisms on the "other end" of all those missing WH emails, and the right court order could make it a felony to destroy whatever remains.

If they had done it throughout the government, I would have counted it as the one positive thing the Bush admin had done. I worked for the govt. 2003-2005 and Lotus Notes is an antiquated POS.

The Republicans have turned incompetence and corruption into an ideology. At some point they'll find one of their planted judges to overrule. Besides, we all know that blanket pardons have already been written up.

Right. In 2000, the Supreme Court didn't rule in favor of Bush so much as run out the clock.

The House of Cards is collapsing, one statute at a time. And Rove, the perennial Joker in the Bush deck, is no longer the wild card, he's on the run and his delusion of immunity fades with every new baby step that Congress takes.

The Siegelman persecution alone should be more than enough history to get Karl frogmarched into captivity, and his latest escapade about IT evil genius(R) Connell and Ohio 04' election thievery is icing on the cake of justice that we will all relish once it's baked.

Someone needs to revoke Rove's passport before he flies off to join Ken Lay on that palm frond in Dubai, you know, the one where Cheney and Halliburton are planning to dwell once they have finished their destruction of our American way of life.

I love the smell of pissed off Republicans early in the morning.

Details please...does the ruling provide deadlines for submitting the documents and as to how soon Miers, et all are to be available for testimony???

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0409-49

There's the order/opinion if you want details. It'll likely be appealed.

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it's all a show folks...

Until we see the new folks in town pass laws which STOPS this behavior in the future, nothing will change.

Meanwhile, the only proceedures being followed are those which, in the end, will ensure NOBODY important will pay consequences for the continued destruction of this nation...

Anyone want to bet the NEW president or the NEW Congress or the NEW Senate in town (independent of WHICH party affiliation) will actually limit the actions of the administration, or actually make laws with consequence for the crooks who are found out, or actually LIMIT the power of lobbyists or... or...

When you can no long prosecute folks who are torturing innocent people and can no longer prosecute those who send innocent folks to an illegal war... and when someone who didn't even bother to read available reports before authorizing innocent people to go to their deaths... we have LOST!

Of course, reality shows seem to be much more important than democracies nowdays..

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ummm... before bothering to pass any new laws it is important that existing laws (both constitutional and statutory) be enforced and legitimately interpreted. that's what this is all about.

passing 'new' laws would be a 'show'. conyers and the judiciary committee aren't interested in putting on a show, they are performing their legitimate obligation of legislative branch oversight and allowing the judicial branch to perform its legitimate function as well. this unfortunately, but understandably, takes time. 'swift justice' is usually anything but.

your hysterics are misplaced.

Next up: Appellate courts!

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johnnydoughey:

I think you miss the point. It doesn't matter what new laws are passed when the executive branch simply ignores the law, claiming that it doesn't apply to them.

This is a good court ruling, but even if it stands on appeal, it does absolutely no good as long as BushCo is willing to ignore the courts. The *only* check on presidential power is impeachment. Take that off the table and no other restraints will work.

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Actually, arrest by the Sergeant At Arms and detention in the Little Cell In The Basement of the Capitol will do wonders to break the deadlock.

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While a few of the House democrats are willing to pursue this to its end, the democratic leadership is not. At the moment these criminal behaviors are still election issues.

After the elections are over, watch for the democratic leadership, including Obama, to shoot this down.

You don't have to be a blind conservative not to see it, just an ignorant one to deny it.

Miers and Bolton are just buying time until they can get a Presidential pardon and skate on the issue. All of the Bushies are going to be in delay mode with any court proceedings, they only need to stretch it out five more months - that's nothing with a decent lawyer, and you know they all have the best.

... even if it stands on appeal, it does absolutely no good as long as BushCo is willing to ignore the courts.

I don't remember a case of Dubya et al defying a court order -- yet.  Maybe I've been asleep at the switch?

Defying congressional subpoenas, fer sure.  Sending the Sergeant at Arms to enforce them is impractical.  But a federal judge issuing an arrest warrant for contempt of court is a commonplace occurrence.  The courts have (I think?) the Federal Marshals to enforce their orders.

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There's no way they testify. This'll get appealed, then appealed again. And again.

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Appeals take money and I think it would be stupid of Meirs/Bolten/Rove to think that they have deeper pockets than Congress. They might appeal until Bush's term is over but they will be in worse shape because he couldn't pardon them.

Hence, Democrats would welcome an appeal to a congressional lawsuit.

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Good point. A string of appeals is preferred, actually, because it gives time for Bush to leave and lose his pardon power before any of the criminals are charged.

Including W himself.

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I agree. Use the string of appeals to run out the clock against the power to pardon. Probably won't stop Bush from trying a "pre-emptive pardon" but he'll lose that war too.

It's too late for impeachment. Better to keep the powder dry and fire when you see the whites of their frightened beady eyes on 090120, O happy day.

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I don't expect that man-woman Harry Miers to appear before Conyers' committee at all, even after this court ruling. She clearly feels she is above the law and cares only about her arrogant self. This was ably demonstrated when she accepted Bush's offer as Supreme Court nominee, even though she had to know there were more qualified people than her for that position, like current Justices Roberts and Alito. But she could never say no to Bush, and he wanted to be 'comfortable' with his choice, as if the Supreme Court was his plaything, and so he offered it to her, his long time friend, fellow Texan, and at that time WH counsel. Oh she readily accepted and the resulting Conservative firestorm objecting to her selection was correct and deservedly embarrassing to her. No one should have any use for this old hag. She's as arrogant today by ignoring those subpoenas as she was that day when she accepted that nomination. Frog march her overly-lipsticked face into jail.

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You can make your point without being personally insulting. Can we please keep the discussion above the level of a junior high school locker room?

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IF Dems would have let those FISA lawsuits mover forward, via shelfing the FISA bill that Nancy had the power to do, then Dems would have had all the control they needed - Bush would have bent over backwards for them.

If Nancy Pelosi had done her job, not blamed everyone else for her extreme lack of leadership, not hidden criminal acts of wiretapping done by this administration from public view, we would not be on this slow road to nowhere, with criminal acts of this administration being merely used as political fodder for Dems political objectives and campaigns, void of any real intent of accountablity.

Pelosi doesn't care about the act torture or the wiretapping anymore that Bush cares about it, otherwise, she wouldn't be trying so hard to protect it. If Pelosi doesn't torture, why isn't impeach on the table.

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Although this is a positive step forward, the likelihood that Unkle Karl and his little gang will spend one second testifying under oath is still quite remote.

It is not yet time to invest in porcine aviation.

Judge John Bates of the U.S. District Court again?
Isn't he the one that ruled against Dennis Kucinich suing President Bush’s withdrawal from the Anti-Ballistic Missile (ABM) Treaty, ruled against Valerie Plame suing Dick Cheney and Scooter Libby and Karl Rove? Obviously, he's the administration's go to guy when they want a favorable opinion. Guess even Judges have to follow stari decisus.

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big deal. who's gonna enforce it.

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A small, but important, victory.

Think back a few years, this case could have been brought before Bush's reactionary rightwing appointment to the DC cicuit, Janice Rogers Brown, who would have denied the House and likely denouncement their efforts in the process.

Our democracy hangs on fewer threads every day that republicans rule the WH.

So in short, the White House can continue to claim executive privilege, and Congress can continue to sue them on the legitimacy of the claims. Unless the two parties can work something out, around and around we go.

In other words, the Bushies get off Scot free while the Girly-Crats huff and puff and threaten to blow their house down.

This ruling is just the latest in a succession of incidents that amount to nothing. Hearings, subpoenas, contempt, ruling, blah blah blah.

Bush and his gang will leave office unaffected.

Sad.

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while i too am disappointed (to say the least) that specific individuals will not get what they ought to have coming to them, i am less concerned about the fate of individuals than i am about the fate of expansive claims to executive privilege that can be employed by future administrations. constraining the executive branch is more important than punishing members of the administration.

I'm so loving the idea of Harriet Miers having to testify.


ROFLMAO!!!!

Y'all have no idea how much I love this.

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"After looking over the Opinion, [I see that] Federal Judge John Bates lays out protocol for Congressional subpoenas, stating that while there may be perfectly legitimate claims of executive privilege, a subpoena from Congress can't just be ignored-- and if it is, Congress has a right to sue for failure to respond."

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yes. thank you.

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my guess is that it could be more likely the administration will drag its feet with procedural delays than appeals. appealing this decision (and losing) could turn a trial court opinion into an appellate court ruling and give the ruling greater precedential weight, couldn't it? leaving it be, having miers show up to 'testify' if need be and forcing the committee to challenge each separate claim of privilege might be preferable to an administration intent on securing the broadest possible interpretation of privilege.

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Sounds like this is just setting up the appeal.

Still, assembling the documents for the judge's in camera review is a good start.

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