John Dean: Miers, Bolten, Rove subpoenas will lapse on Jan 3, 2009. (More Pelosi kabuki awaits)

[seafan]

http://writ.news.findlaw.com/dean/20080808.html">Judge Bates Slams the Bush White House's Claims of Congressional Immunity: Why There May Be No Consequences for the White House, Despite the Clear Ruling

By JOHN W. DEAN
August 8, 2008

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However, on July 31, when Judge Bates handed down his decision, he ruled in favor of the Judiciary Committee, not the White House, and the thrill was surely gone. The White House had pushed the law beyond its boundaries, and this time, the Judge pulled them up short.

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Can The Bush White House Stall On Compliance with Judge Bates’s Ruling?

After Judge Bates had smacked down argument after argument presented by the Executive Branch, one matter did give him pause. “The 110th Congress expires on January 3, 2009. Unlike the Senate, the House is not a continuing body,” he noted. Thus, when Congress adjourns, so too will the subpoenas for the testimony of Miers and Bolten (not to mention for the testimony of Karl Rove, whose contempt citation is pending before the House for the same reasons the contempt citations of Miers and Bolton are).

Judge Bates addressed the question of mootness head on: “On the Committee’s side, the entire House -- and thus any outstanding subpoenas -- will lapse on January 3, 2009, and the basis of this lawsuit will cease to exist. To be sure, the incoming House of Representatives may elect to re-issue similar subpoenas, but that remains speculative at this juncture. Similarly, the incoming executive administration may decline to pursue the assertions of immunity and executive privilege that form the foundation of this dispute.” Again, note the tone Judge Bates employs in his discussion of the matter of Bush’s leaving office and still claiming privilege: “A former President may still assert executive privilege, but the claim necessarily has less force, particularly when the sitting President does not support the claim of privilege.”

Judge Bates continues, “As with the incoming Congress, there is no way to predict whether the new administration will support the assertions of privilege made in this case. There is also the likelihood of appeal of this decision and, given the significance of the issues involved, a stay pending appeal is at least possible. Thus, although proceedings before this Court could be concluded prior to January 2009, any appeals process may not run its course before that date. At that point, the case would arguably become moot. Nevertheless, the Court concludes that this concern does not counsel against entertaining this case.” Accordingly, Bates issued the decision ruling against Bush’s aides.

If I were to wager, I would say that President Bush will now stall. The White House will appeal, and the issue will become moot. We will get a clue about what the Democrats will do when the House returns from its summer recess and addresses Karl Rove’s pending contempt citation. Given her history, Speaker Pelosi would no doubt like all this to go away. Remarkably, she has not shown much concern about the Executive Branch’s denigrating the Legislative Branch.

Thus, Pelosi will likely go through the motions but wait to see what happens in November. If McCain is elected, she might do something before her caucus takes away her speakership; if Obama is elected, she will say, “Let’s get all this behind us so that the Congress will not be fooling around with Bush once the new president arrives.” That’s a shame – for the Bush Administration should be held accountable so that the Department of Justice’s integrity is never again compromised with such shamelessly political firings. Yet it seems that Speaker Pelosi would rather be loved than respected, and will sacrifice long-term institutional concerns for present-day popularity.

Our country has been cruelly betrayed.

[Solly Mack]

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