http://www.boston.com/news/nation/washington/articles/2008/06/24/judge_challenges_bushs_immunity_claim/

Judge challenges Bush’s immunity claim
Privilege asserted for top advisers
By James Rowley
Bloomberg / June 24, 2008

“A US judge voiced doubts yesterday about President Bush’s assertion that his top advisers are completely immune from being forced to testify before a House panel investigating the firing of federal prosecutors.

US District Judge John Bates repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee.

The panel in Washington sought testimony and documents from Miers about whether White House aides orchestrated the nine dismissals for improper political motivations, such as to spur prosecution of Democrats or protect Republicans.

Bolten was subpoenaed to produce documents.

“There is no case that supports the absolute immunity proposition that you have before the court,” Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government “seem to support something less than an absolute immunity,” the judge said.

Bush has asserted executive privilege in refusing to allow top aides, including his former political strategist Karl Rove, to testify before Congress about the US attorney dismissals.

The House went to court in March for an order to force Miers and Bolten to appear before the committee after the Justice Department refused to criminally prosecute them for contempt of Congress.

Irvin B. Nathan, the House’s general counsel, argued that Miers was required to at least appear before the committee and invoke Bush’s executive-privilege claim on a question-by-question basis. That would give the committee – and possibly the courts – the ability to weigh the panel’s need for information against Bush’s confidentiality claims, he said.

The case may be the biggest test of a presidential assertion of executive privilege since President Nixon refused to turn over tapes of recorded Oval Office conversations to a federal grand jury investigating Watergate.

The Supreme Court in that case recognized a qualified privilege that was overcome by the grand jury’s need for information about a criminal investigation that could influence decisions about whether to prosecute government officials for crimes.

“You would transform it, would you not, into an absolute privilege” by top aides to refuse to answer questions from Congress, Bates asked Nichols. Such an assertion would leave Congress and the courts unable to address the merits of the privilege claim, the judge said.

During a three-hour argument, Bates also suggested that he might order more negotiations between Congress and the White House over the production of documents after Nichols conceded the Bush administration was only asserting a “qualified privilege” to turn over documents.

A more detailed description of the types of documents Bush sought to withhold from Congress “would be very helpful to the kind of accommodation process” that would avoid a court fight, the judge said.

In February, the House voted 222-30 to hold Bolten and Miers in criminal contempt of Congress for ignoring subpoenas to cooperate with the Judiciary Committee’s investigation of the dismissals.

A month later, the House filed a civil suit to enforce the subpoena after Attorney General Michael B. Mukasey refused to seek criminal prosecutions for the failure of Bolten and Miers to obey the subpoenas.

Noting that any decision is likely to be appealed, Bates said the subpoenas would expire when a new Congress takes office in January, when there would also be a new president.”

Why thank you both. I feared it had sunk without a ripple! I do regret the line where I put in too many syllables (I was composing on the fly and didn’t work it out properly).

The relevant line would better read “I’m sure as AG I’ll safely stay!”

Too bad the WhiffnPoofs aren’t still around to build a review around Pinafore with modern characters!

DW (who sings Gilbert & Sullivan in the shower oft-times)

I wanted to thank you for your clarification and for your kind words. I appreciated them both!

Not to worry Michael, in context your Sachs post was still clear
-to me, anyway.

I’m pouting over JT’s Mukasey Paradox. I still liken the situation to ‘the chicken or the egg’ with the Oath of Office being the most important factor weighing.

Before Bush was formally entrusted with the executive power which eventually enabled him to torpedo and then scuttle the ‘USS’ Constitution, he first took an oath to keep it afloat, if you will.

In that regard, he betrayed the American people, and I know we, the governed, never consented to that. Our long standing system of checks and balances tells me that Bush has gone far beyond the established, logical, or rational basis intended for executive privilege.

Executive privilege is not the law that trumps all other laws, in my view. And it was never meant to be a “Get Out of Jail Free” card.

It was still a brilliant effort regardless of the title.

(slaps head)

DW

I thought that at least in the case of the fourth amendment the FISA laws had addressed this urgent need. Moreover, they made it clear that the law did apply to the highest level of government. No more could a president echo Nixon’s infamous, “If the president does it it’s not illegal.”

I guess I was wrong about that. Apparently I was wrong about the whole ‘government of laws, not men’ thing too.

NB: Have any controversies risen from the public regarding any issues in the Constitution?

Another early controversial issue dealt with the holding of South Africa’s first democratic local government elections. We said that Parliament could not give authority to the President to lay down all the rules and regulations; that Parliament itself had to do that. So we declared the President’s Proclamation invalid. President Mandela accepted with very good grace saying that he had to be the first to show respect for the law and the Constitution.

This seems to contradict your quote.

More importantly, our Founders clearly set out to limit Executive power.

oh, and one more thing: here’s my favorite paradox:
“This statement is false.”

Oh, for younger readers not acquainted with Gilbert & Sullivan (or even Lerner & Loew for that matter), I am cribbing from Pirates of Penzance.

“When I was a lad, I served a term
as office boy to an Attorney’s firm.
I cleaned the windows and I swept the floor,
And I polished up the handle on the big front door…

[chorus]

Yes, he polished up the handle on the big front door!

I polished up the handle at their say
And now I am the AG of the DOJ!

[chorus]

He polished up the handle at their say and now he is the AG of the DOJ!

When torture came round at my hearings long,
I carefully said I could see no wrong,
I gainsayed this and couldn’t remember that
And Leahy couldn’t see where I was at!

[chorus]

No, Leahy couldn’t see where he was at!

I hemmed and hawed as best I may
Then they made me the AG of the DOJ!

[chorus]

He hemmed and hawes ss best he may,
And now he is the AG of the DOJ!

When my turn came to prosecute,
I found the whole issue very moot,
I can’t find crime where orders exist
And sprung on the House that little twist!

[chorus]

He sprung on the House that little twist!

I sprung that twist so deftly they say
I’m sure as AG of the DOJ I’ll stay!

[chorus]

He sprung that twist so deftly we say!
We’re sure to see him longer at the DOJ!

So all young attorneys new to law,
Heed faithfully my noble saw,
If Boss you have and he says Leap!
Forget the books, and your job you’ll keep!

And if you leap so faithfully,
Then you too will become the USAG!

[chorus]

Protect your Boss and you will be
a perfect model of our beloved AG!

“To imagine any power of the president bound by the Bill of Rights is simply unimaginable in our country. We spent too much time struggling for an enforcable Bill of Rights. To even entertain the possibility would make you fail the very first test in the very test in law school. It’s simply unimaginable.”

It shouldn’t be a hard concept.

The funny thing about Nihilists lay in their self-contradictions; i.e. claiming to ‘know’ that knowledge is impossible while writing sentences and paragraphs distinguishing certain values above others–else the sentences wouldn’t make any sense.

That aside, it appears that Mukasey’s Paradox relies on the contradiction of our republican form of government for its existence.

Truth; the non-Nihilist variety:

“What is truth? The nominal definition of truth,
that it is the agreement of knowledge with its object, is
assumed as granted….” Immanuel Kant, Critique of Pure Reason

And, I could be wrong, but I think the ‘object’ of our republican form of government is the contradiction of Tyranny; either the Montesquieu or Locke variety.

For Locke, tyranny exists “When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.” — J. Locke 2nd Treatise

And how does that translate into Latin per Mukasey’s Paradox? It’s always fun to scan through a master list of legal maxims to learn Latin:

In propria causa nemo judex. No one can be judge in his own cause.

Consentientes et agentes pari poena plectentur. Those consenting and those perpetrating are embraced in the same punishment.

Idem agens et patiens esse non potest. One cannot be agent and patient (i.e. one that is acted upon), in the same matter.

Regards,

Bob

What’s even more astounding is the constitutional irony that is playing out: what happens when the key actors in the Constitutional framework fail to uphold their duties and oaths under the Constitution?

Perhaps Mukasey’s position is that the Department of Justice, being a member of the Executive Branch, can never investigate and prosecute the Executive Branch. It would be self-referential and paradoxical! Recall Bertrand Russell’s Barber Paradox and rephrase it to see why this is so:

“The Dept of Justice is that agency which investigates everyone in the government except those who investigate themselves.

Does the DOJ investigate themselves or not?”

A paradox, if they do, they don’t, if they don’t they do, so obviously it is legally and logically impossible for the DOJ to ever be culpable of anything!

And by a simple extension of the logic: the Executive Branch is immune also since it the proper class which the DOJ is an element!

So Mukasey cannot lose, it is a logical impossibility for him to investigate the Executive!

In fact, this means that an independent investigator is the only possible solution to the logic of this paradox. Mukasey, being logically forbidden to do much of anything including DEFENDING the administration (i.e. the same logic applies to the DOJ defending the Executive) is free to go boating, or fly kites or whatever, to occupy his time.

The fact that this Attorney General cannot and will not admit to the people that this President has broken the law and SHOULD face a criminal inquiry and impeachment makes it clear to me that he was never an Attorney General for the American citizens. It appears that he has only been acting as a defense attorney for the President. Sounds like a serious conflict of interest to me.

Jill

But, Kudos, Bravo, Splendid! Huzzah to Professor Jonathan Turley for this essay. Hopefully we could see it or a close variant in the NYT or WaPo!!

Also “Mukasey’s Fork” might be apt description as well after the infamous “Morton’s Fork” of English tax collection history.