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Archive of entries posted on August 2008

Judge Bates Denies a Stay

            Judge Bates denies the Justice Department’s request for a stay in the Miers case.   His analysis of the four stay factors largely proceeds along the lines I expected.  While I thought he might give some credit to the Executive’s chances of prevailing on appeal simply based on the novelty of the issues presented, he [...]

Senate Ethics Guidance May Prove a Liability for Stevens Prosecution

            One other motion filed by Senator Stevens should be noted because it refers to what I anticipate will be at the core of his defense.   The issue, explained below, is whether Senate Ethics guidelines clearly require the disclosure of the “things of value” Stevens received.              The government charges that Stevens received various things [...]

Stevens and Separation of Powers

         Senator Stevens has filed another interesting motion, one that seeks to have his indictment dismissed on separation of powers grounds.  His theory is that the requirement that Senators file financial disclosure statements is one imposed by Senate rule, not by law.  He recognizes, of course, that there is a statute, the Ethics in Government [...]

The Prosecution’s Assault on Senator Stevens’ Legislative Privilege

       The prosecution’s motion in limine in the Stevens case lays out the evidence that it intends to introduce “concerning solicitations made by [VECO] and its executives or non-legislative acts taken by Senator Theodore F. Stevens or his staff in response to VECO’s solicitations.”  The government seeks a ruling in advance of trial that such [...]

Senator Stevens’ Speech or Debate Defense

  Senator Stevens’s lawyers have filed a blizzard of motions attacking the indictment against him.  One contends that the indictment violates the Speech or Debate Clause of the Constitution.   For the reasons set forth below, it is highly unlikely that Stevens will be successful in having the indictment dismissed on this basis.  Making this argument, [...]

Will Judge Bates Issue a Stay in the Miers Case?

           In his July 31 decision on the congressional subpoenas to Harriet Miers and Josh Bolten, Judge Bates noted “the likelihood of appeal of this decision,” and he observed that “given the significance of the issues involved, a stay pending appeal is at least possible.”  The court will now have to resolve this issue because [...]

Legal Background on the Stevens Indictment

        This post sets forth a little legal background that may be helpful in understanding this week’s indictment of Senator Ted Stevens (R-AK).    Stevens is charged with failing to disclose, on his annual financial disclosure form (FD), hundreds of thousands of dollars in goods and services he received from a private corporation and its CEO from [...]

The Miers Case- Where do the Parties Go from Here?

The six points laid out by Judge Bates (listed in my last post) should be instructive to both parties as they move forward.  For the executive branch, it should be evident that it made a mistake in refusing to have Miers appear in response to the congressional subpoena.  By doing so, it presented the court [...]

More on Equitable Discretion

Below are the six reasons given by Judge Bates as to why he would exercise his discretion to issue a ruling in the Miers case.  In my next post I will consider how these points may impact the parties as they go forward.  (1)  judicial resolution would settle this dispute between the parties as to [...]