Absolute Privilege

The Bush administration wants to say that its officials have carte blanche to ignore congressional subpoenas, to which Judge John Bates replies:

The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law.

Mark Kleiman observes that this is the legal equivalent of being told your argument is bullshit. For real analysis read Marty Lederman.

Comments

For those who don't know, Judge Bates is a Bush appointee, and former Whitewater staffer. So, just another damn liberal activist judge.

Incidentally, in the long run this Administration has done as much or more to generate legal opinions limiting executive powers and privileges as any previous Administration, including the Nixon Administration. I suspect that was not their intention, and I honestly think they have been ill-served by the yes-men they installed as their lawyers.

Posted by DTM | July 31, 2008 5:48 PM

Assuming this gets appealed (and it probably will) any ideas who the judge(s) that will hear the appeal would be and what their political inclinations are?

Posted by Jim Crozier | July 31, 2008 6:09 PM

I'm still curious as to the reason that inherent contempt charges have yet to be filed.

Posted by Scott | July 31, 2008 6:15 PM

So, the White House must be referring to non-case law.

Posted by Garuda | July 31, 2008 6:16 PM

If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator.

Yeah, he's the dick-tater alright.

Posted by LFC | July 31, 2008 6:23 PM

Not just a smackdown, but a smackdown from a former Starr associate who has ruled in Bush's favour in every high-profile decision he could. Ouch.

Posted by dB | July 31, 2008 6:47 PM

I long for the days of 25-30 years ago (not really but bear with me) when a comment like this would get the opposing lawyer sanctioned under Federal Rule of Civil Proceudre 9, where they could be fined money for wasting the court's and the opponent's time.
If only...

Posted by William Smith | July 31, 2008 6:48 PM

All of the Bush administration's claims about the law sound as if they were inspired by the Third Reich.

Posted by Swan | July 31, 2008 8:59 PM

All of the Bush administration's claims about the law sound as if they were inspired by the Third Reich.

Posted by Swan | July 31, 2008 8:59 PM

I'm still curious as to the reason that inherent contempt charges have yet to be filed.

I think the Congressional leadership wants to get the courts on record backing them. Just my guess.

Of course, with Harry Reid in the picture, we can't rule out abject cowardice.

Posted by joe from Lowell | July 31, 2008 9:02 PM

would get the opposing lawyer sanctioned under Federal Rule of Civil Proceudre 9

FRCP 9 contains some technical pleading rules. You probably mean FRCP 11 :)

Posted by rea | July 31, 2008 10:40 PM

I don't know how my comment could have showed up twice, although at all happened when I pushed the button the first time (Matt's website usually runs the green "loading" icon at the bottom of my Windows explorer window for 30 seconds or so to post comments + get to the next screen for me for some reason), so I pushed it twice.

Anyway-- I wouldn't say that being told your argument is completely without support in caselaw "is the same thing as being told your argument is bullshit" because caselaw is based on either statutes, a constitution, a treaty, the self-published rules of an administrative agency, or-- get this-- other caselaw, but if you're making a new, pragmatic argument that doesn't have support somewhere else, it is in the abstract a relative weakness.

Anyway, I think Bush's administration's point of view is a departure from already established caselaw (that is, it's contrary to settled law), to be precise, which is another matter entirely and is potentially a lot worse than just not having support in the caselaw.

Posted by Swan | July 31, 2008 11:49 PM

"although at all happened when I pushed the button the first time"

Should say "nothing at all happened."

Now whole words are disappearing from my comments, too-- imagine that!

Posted by Swan | July 31, 2008 11:54 PM

I'm still curious as to the reason that inherent contempt charges have yet to be filed.

Posted by PiriketSeverler | August 1, 2008 5:06 AM

I'm still curious as to the reason that inherent contempt charges have yet to be filed.

Posted by PiriketSeverler

So far I haven't seen much evidence or even suggestion that the Democratic leadership is at all interested in using that authority.

Posted by El Cid | August 1, 2008 6:23 AM

Swan,

That happens a lot. Just give it 20-30 seconds, then refresh or go to another page.

Posted by joe from Lowell | August 1, 2008 9:31 AM