Federal district judge John Bates held today against the motions of Harriet Miers and Joshua Bolten to dismiss subpoenas from the House Judiciary Committee. I have only begun to read Bates’ 93-page opinion (PDF file), and I haven’t decided whether he was right or whether the Bush White House’s claims to shield them behind executive privilege will fare better on appeal.
But I can say that one knows one is in for a long slog through a lot of wheezing, clanking, tired rhetoric about the high importance of the judiciary’s functions when the judge can’t get past page 2 without quoting Marbury v. Madison (out of context, of course) for a proposition broader than the case will sustain. And when you get to page 3, you know that interpretive shortcuts are being employed. There Judge Bates quotes the venerable (if somewhat overdone) opinion of Chief Justice Burger in the famous Watergate case of U.S. v. Nixon (1974):
neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.
Those are Judge Bates’ square brackets, introducing “or congressional” where Burger said no such thing. It should go without saying, but evidently it doesn’t, that the position of the executive branch vis-à-vis judicial process in a criminal case, as in Nixon, and vis-à-vis congressional process in a politically charged scandal hunt such as the Miers case, are not necessarily the same thing. And the position of the judiciary with respect to the issues in these two different kinds of cases may properly be very different indeed.
Bates’ interpolation is breezy and presumptuous. But it’s a perfectly natural move when you begin with the historically dubious assertion that it is the “fundamental role of the federal courts to resolve the most sensitive issues of separation of powers.”