The Judiciary Committee v. Harriet Miers: Separation of Powers

I came across this TNR article (via BookForum) on a lawsuit between the House Judiciary Committee (plaintiff) and Harriet Miers and Joshua Bolten (defense). For those who are inclined, the case number is “1:2008cv00409“, and it is currently in the docket of the US District Court for the District of Columbia. You may now PACER at will.

The TNR article does a decent job summarizing the facts, but the short version is this: the House Judiciary Committee, in investigating the possibly politically-motivated firing of US attorneys, subpoenaed both Harriet Miers and Joshua Bolten to appear to testify and provide documents. The committee has reason to believe that the White House was involved in the firing, and they wanted information from Miers and Bolten. The Administration of course refused, citing executive privilege, and neither Miers nor Bolten testified. The House voted to cite both Miers and Bolten for contempt; the motion was passed. Having ran out of political options, the Judiciary Committee is now using the legal option, seeking relief from the court in the form of injunctions to both Miers and Bolten to appear in front of the committee, testify and provide the requested documents.

Now, why is this case important? After all, “Attorney-gate” has largely blown over: Albert Gonzalez is gone, and there are bigger things to worry about in an election year. I would say that the case is important for one reason: separation of powers. If you read both the plaintiff’s complaint and the defense’s response, you’ll realize that the case is essentially about how far executive privilege extends.

The Administration is arguing that the the immunity to compelled testimony conferred upon the President extends to his advisers, while the House is arguing that the Administration’s refusal to turnover witnesses and documents hinders its Constitutionally-endowed power for investigation and oversight. Clearly, the issue is about the separation of power and the ensuing power struggle that goes with it.

The Administration’s argument, as it is presented in the memo to the court, is that such inter-branch disputes over access to information should be resolved politically, through negotiation and compromise. This claim is reasonable prima facie, but in the case of Attorney-gate, the political option is no longer on the table. The Administration denies this by saying that Congress can bargain by leveraging its appointment power (by withholding confirmation of executive nominees) or its appropriations power (witholding funding for executive programs). In other words, the Administration is arguing that Congress has not exhausted its political options, and therefore the courts should not intervene just yet.

I find the Administration’s argument unpersuasive, because it is based purely on technicalities while ignoring the political reality. First, in this specific case, the House Judiciary Committee does not have the leverage of witholding confirmation of executive nominees, because that function is reserved exclusive for the Senate. Second, while it is technically true that the House can withhold appropriations for federal programs, such a move is tantamount to a “nuclear option”–it is essentially shutting down the government in order to force the executive branch’s hand. But of course the Administration would make this purely technical argument, because if this argument is found to be persuasive, then the Administration has essentially won, because the Administration knows that whatever political “options” that Congress has is unusable.

The Administration also appeal to precedent, arguing that such inter-branch disputes have always been in the realm of politics, not law. The Administration argues that such disputes over access to information has always been resolved through political negotiation between the branches, and that any judicial intervention, no matter which side it favors, would upset this balance and create the undesirable precedent of further judicial intervention in what is traditionally a political arena.

Again, prima facie, the Administration’s argument is plausible. But again, the argument doesn’t hold in this specific case. From reading both the plaintiff’s complaint and the Administration’s response, political negotiation has completely broken down. At this point, further compromises seem unlikely, if not impossible. Therefore, the legal option is the only thing left to do. And here we run into a legal question raised by the case: does a compromise of an institutional interest constitute an injury, and thus granting standing to sue?

Here I won’t go into the lengthy arguments offered by the Administration on the limits of Article III jurisidiction, but to summarize: the Administration argues that the Judiciary Committee has no standing to sue because an “informational injury” (caused by the Administration’s refusal to turn over information needed for oversight) does not give the standing to sue. The Administration cites previous cases to argue that an injury to institutional interest (as opposed to personal interest) does not give standing.

On this question I do not know what to think, but what is clear, to me at least, is that the Judiciary Committee has had its institutional interest compromised. After all, the Constitutional clearly grants the legislative branch the power to conduct oversight investigations of the executive branch, and since the committee has a reasonable belief that the White House might have done something illegal, it can rightfully ask for some further information from the people whom the committee has reason to believe is extensively involved. In fact, I would be greatly interested to see what the court says on this question, but that is only one more reason for this case to proceed, because we need more clarification.

At the end of the day, I just don’t find the Administration’s arguments persuasive. Our government is designed so that each institution has its own institutional interests and will compete against each other. The role of the judiciary, at least one of them, is to patrol the boundaries so to speak. Of course the Administration would argue for judicial non-intervention, because it preserves the status quo, which is heavily tipped toward the Administration under Bush. It is high time that the courts stepped in and delineated the boundaries and put a check on what has been an almost limitless expansion of executive power under the Bush administration. Of course the courts may rule in favor of the Administration, but that should be up to the courts–an independent third-party institution–to decide, not the Administration, which has a vested interest in the proceeding.