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 with a pure legal issue that could be resolved without getting into the disputed and politically contentious facts regarding the U.S. Attorney firings. Had Miers appeared and refused to answer particular questions on the grounds of executive privilege (as WH aide Sara Taylor did), it would have been far more difficult for the House to prevail.
The executive branch attempted to mitigate this weakness in its litigation posture by offering to have Miers appear and answer questions in a private, unsworn and untranscribed interview with the Committee. However, as Judge Bates states, the executive branch undercut itself by adhering to its original proposal without modification. Although not stated by the judge, one must assume that he thought that proposal was unreasonable or inadequate in some respect. It seems to me that the insistence that the Committee give up the right to seek any further information as a condition of obtaining the interview was an obvious non-starter. Had the executive branch dropped this condition, the case might have come out differently.
The executive branch will undoubtedly be tempted to appeal this ruling to the D.C. Circuit. The first problem that it will face is whether this is an appealable order. Certainly it is not a final order. Frankly, I don’t know enough about this area to say one way or the other, although I am told that there is a recent D.C. Circuit case (involving subpoenas to Members of Congress) that would suggest this is not appealable.
Assuming that this hurdle can be surmounted, however, is it wise for the executive to appeal? Appealing the case in the current posture places the executive branch in the same difficulty it was in before the district court. It will be defending very problematic legal positions on standing and absolute immunity in a complete vacuum.
Although there is a solid majority of Republican appointees on the D.C. Circuit, there is no guarantee that this will give the executive a more sympathetic audience for its positions. One of the Republican appointees, Judge Thomas Griffith, previously served as Senate Legal Counsel and has a keen appreciation of the congressional perspective on these issues. Another, Judge Ginsberg, served on the three-judge district court that upheld congressional standing in the census litigation based in part on the fact that congressional standing to enforce subpoenas was well-established. And, in general, it is hard to see anything in Judge Bates’s thorough and well-reasoned opinion that would likely lead to a reversal by the appellate court.
Of course, appealing the decision would take time, and the appeal might not be decided before the Bush Administration’s term expires. Nonetheless, the Administration has to be concerned about creating yet another judicial precedent that will restrict the authority and autonomy of the executive branch. And it is not as if appealing the decision makes it likely that these matters will be off the public radar. The Senate Judiciary Committee has already jumped on Bates’s opinion to renew calls for Karl Rove and Josh Bolten to respond to subpoenas.
The executive branch would be better advised to offer a private interview with Miers on the condition that any questions she answers would remain subject to a claim of executive privilege. The Committee would have to agree that following the interview (which would be transcribed) the parties would take any disputed questions and answers back to the court, and that those parts of the interview would remain sealed until there was a final ruling on the privilege issues. This proposal would seem to satisfy the Committee’s legitimate investigative needs and it would be difficult for the Committee to refuse without losing the high moral ground that allowed Judge Bates to exercise his discretion in its favor.
Perhaps the most vexing question has to do with how such a proposal would impact the contempt matter involving Karl Rove, who, as Judge Bates noted, was subpoenaed by the Committee to testify about alleged political prosecutions and refused to testify based on absolute immunity. It would likely be in the executive branch’s interest to make a similar offer for Rove to testify privately and to reserve questions about executive privilege. On the other hand, the Committee is undoubtedly much more eager to haul Rove into a public hearing than it is Miers. Moreover, in Rove’s case there is no readily available forum to decide the privilege issues (even if the parties were to agree to submit them to Judge Bates, I doubt he would agree to resolve them).
Because the Rove matter is not pending before Judge Bates, I doubt that he would look kindly on any attempt by either party to tie it to resolution of the matters that are before him. Therefore, if the Committee chooses to treat the Rove matter differently from the Miers matter, there is probably nothing that the Administration can do about it. From a public relations standpoint, though, the Administration would be able to say that it made the same offer with regard to Rove as it did for Miers.