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On Standing, Judge Bates Leans in the House’s Direction

I don’t know how Judge Bates will ultimately rule in the House contempt suit against Harriet Miers and Josh Bolten, but, after listening to Monday’s nearly three-hour oral argument in the packed ceremonial courtroom (which felt like an oven after about two hours), I do not think he will dismiss the suit on standing grounds.  This is somewhat surprising because, as I have noted before, Bates’ opinion in Walker v. Cheney suggested that he would be receptive to DOJ’s standing argument.

House Counsel Irv Nathan argued first, and Bates’ initial questions to him did not involve standing, but focused on the merits of privilege claims that had been asserted. It was not until well into Nathan’s argument that Bates asked him about standing, and the judge did not aggressively pursue the issue (even when Nathan described the executive’s position on standing as “preposterous”).

When it came DOJ attorney Carl Nichols’ turn, the judge revealed more of his thinking on the standing question. He asked Nichols why the injury suffered by the Judiciary Committee here was any different than that suffered by the executive branch or a private party in a subpoena enforcement action. He also pointed out that Ted Olson and Chuck Cooper, well-respected former heads of OLC, had each authored memos in the 1980s in which they expressed the view that either House of Congress could enforce its subpoenas through civil actions in federal court, thus implicitly recognizing that there would be standing to bring such actions. (Judge Bates repeatedly adverted to the Olson and Cooper memos during the argument, and seemed troubled by the fact that DOJ is now disavowing their positions with regard to the availability of civil enforcement.)

When Nichols asserted that the injury in the Miers case was the same as the injury in the Walker v. Cheney case, the judge demurred with a somewhat cryptic comment to the effect that the injuries were a little different. More importantly, Bates suggested that he was bound to follow the D.C. Circuit’s precedent on this subject, and that the court of appeals in U.S. v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976), had explicitly, if briefly, held that “It is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.” The judge seemed underwhelmed by Nichols’ suggestion that the Supreme Court’s decision in Raines overruled that precedent, noting that Raines was dealing with a different type of standing issue (i.e., the standing of individual legislators) and that the Court did not mention the AT&T case.

Most interestingly, Bates pressed Nichols on what would happen if the House arrested Miers or Bolten pursuant to the inherent contempt procedure that Nichols acknowledged the House could use. Nichols replied that the traditional method for challenging such arrest would be for the incarcerated individual to seek habeas relief. Bates then asked “why isn’t that the same thing” (or words to that effect) as a civil enforcement action brought by the House?

Nichols replied that in the habeas context there would clearly be a personal injury (i.e., the plaintiff would have been deprived of his or her liberty). There are, however, two problems with this response. The first is that the essence of the Justice Department’s argument against standing, and of its attempt to fit the contempt case into the Raines framework, is the absence of any historical practice of courts resolving legislative demands for information against the executive. But by acknowledging that the courts would have to resolve the very same legal issues (between the same parties) in a habeas action, the Justice Department largely undercuts the force of this argument. In essence, it is admitting that the dispute between these parties is one “’traditionally thought to be capable of resolution through the judicial process.’” Raines, 521 U.S. at 818.

Even if one grants that the legislative branch does not have, for some reason, the right to seek affirmative judicial relief in support of its subpoenas, there is a second problem with DOJ’s position. One could easily conceptualize the House’s lawsuit as one for a declaration to the effect that if Miers and Bolten were arrested for contempt, they would have no right to habeas relief. This would seem like a traditional and commonplace use of the Declaratory Judgment Act. In that situation the House would seem to have the same standing as any potential defendant who brings a declaratory judgment action to forestall future litigation.

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