Judge Bates on Equitable Discretion

Judge Bates also rejected the argument that he should exercise his equitable discretion to decline to hear the case.  This was a little more of a surprise.  Given the highly political nature of the controversy before him, I thought the court would be tempted to exercise his equitable discretion, at least on a temporary basis while the parties attempted to work out a compromise.  For example, I thought that the court might suggest that the Judiciary Committee could accept the White House’s offer of a private interview and production of some of the documents so long as the White House withdrew the (unreasonable) condition that the Committee agree not to seek any further information.

             The end result, however, is not terribly different from that scenario.  If the executive branch decides not to appeal immediately (a big if), the parties might now agree to a transcribed deposition of Miers.  For those questions for which the White House asserts executive privilege, the parties could return to court and present the disputed questions to Judge Bates for resolution.  Since the White House was apparently willing to let Miers answer at least some of the questions it believes to be protected by privilege, the parties might further agree that the answers to these questions will be kept sealed unless and until the judge rules that the privilege does not apply.

             This is certainly a more civilized way of resolving disputes than locking Miers up in the basement of the Capitol.  Rumors to the contrary notwithstanding, there is no jail there, although I suppose they could chain her to a vending machine.

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