Committee On Jud., U.S. House of Repres. v. Miers

• Decision Date: 31 July 2008
• Docket Number: Civil Action No. 08-0409 (JDB).
• Citation: 558 F.Supp.2d 53
• Parties: COMMITTEE ON the JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, Plaintiff, v. Harriet MIERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

558 F.Supp.2d 53

COMMITTEE ON the JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, Plaintiff, v. Harriet MIERS, et al., Defendants.

Civil Action No. 08-0409 (JDB).

United States District Court, District of Columbia.

July 31, 2008.

COPYRIGHT MATERIAL OMITTED

Irvin B. Nathan, U.S. House of Representatives, Office of the General Counsel, Washington, DC, for Plaintiff.

John Russell Tyler, Helen H. Hong, Nicholas Andrew Oldham, U.S. Department of Justice, Daniel M. Flores, Committee on the Judiciary, Alan D. Strasser, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Barry Coburn, Coburn & Coffman, PLLC, James Hamilton, Robert V. Zener, Bingham McCutchen LLP, Washington, DC, Sidney Samuel Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

This dispute pits the political branches of the federal government against one another in a case all agree presents issues of extraordinary constitutional significance. The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process. But as is often true of lawsuits that raise important separation of powers concerns, there are many obstacles to the invocation of the jurisdiction of the federal courts that must first be addressed.

The Committee on the Judiciary ("Committee"), acting on behalf of the entire House of Representatives, asks the Court to declare that former White House Counsel Harriet Miers must comply with a subpoena and appear before the Committee to testify regarding an investigation into the forced resignation of nine United States Attorneys in late 2006, and that current White House Chief of Staff Joshua Bolten must produce a privilege log in response to a congressional subpoena. Ms. Miers and Mr. Bolten (collectively "the Executive")¹ have moved to dismiss this action in its entirety on the grounds that the Committee lacks standing and a proper cause of action, that disputes of this kind are nonjusticiable, and that the Court should exercise its discretion to decline jurisdiction. On the merits, the Executive argues that sound principles of separation of powers and presidential autonomy dictate that the President's closest advisors must be absolutely immune from compelled testimony before Congress, and that the Committee has no authority to demand a privilege log from the White House.

Notwithstanding that the opposing litigants in this case are co-equal branches of the federal government, at bottom this lawsuit involves a basic judicial task—subpoena enforcement—with which federal courts are very familiar. The executive privilege claims that form the foundation of the Executive's resistance to the Committee's subpoenas are not foreign to federal courts either. After all, from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("[i]t is emphatically the province and duty of the judicial department to say what the law is"), through United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (the judiciary is the ultimate arbiter of claims of executive privilege), to Boumediene v. Bush, 553 U.S. ___, 128 S.Ct. 2229, 2259, ___ L.Ed.2d ___ (2008) (rejecting regime in which the political branches may "switch the Constitution on or off at will" and, rather than the judiciary, "say `what the law is'"), the Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive issues of separation of powers. In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now "of a type that are traditionally justiciable" in federal courts, United States v. Nixon, 418 U.S. at 697, 94 S.Ct. 3090 (citation omitted), and certainly not unprecedented, as the Executive contends.

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706, 94 S.Ct. 3090):

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.

It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive's several reasons why the Court should not entertain the Committee's lawsuit, but on the merits of the Committee's present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed—and the Court expresses no view on such claims. Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches. Although standing ready to fulfill the essential judicial role to "say what, the law is" on specific assertions of executive privilege that may be presented the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch's essential role. To that end, the Court is reminded of Justice Jackson's observations in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952):

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

BACKGROUND²

At the outset, the Court recognizes that this case is in an odd procedural posture. For purposes of the Executive's motion to dismiss, the Court must accept the Committee's factual assertions as true, but that is not so for purposes of the Committee's own motion for partial summary judgment. Fortunately, however, the operative facts are not significantly in dispute, notwithstanding each side's attempt to put its own gloss on the relevant events.

In early December 2006, the Department of Justice ("DOJ") requested and received resignations from seven U.S. Attorneys: Daniel Bogden (D.Nev.), Paul K. Charlton (D.Ariz.), Margaret Chiara (W.D.Mich.), David Iglesias (D.N.M.), Carol Lam (S.D.Cal.), John McKay (W.D.Wash.), and Kevin Ryan (N.D.Cal). See Pl.'s Stmt. of Facts ¶ 7.³ At some point earlier in the year, DOJ had also asked for and received resignations from two other U.S. Attorneys: H.E. "Bud" Cummins III (E.D.Ark.) and Todd Graves (W.D.Mo.). Id. The circumstances surrounding these forced resignations aroused almost immediate suspicion. Few of the U.S. Attorneys, for instance, were given any explanation for the sudden request for their resignations. Many had no reason to suspect that their superiors were dissatisfied with their professional performance; to the contrary, most had received favorable performance reviews.

Additional revelations further fueled speculation that improper criteria had motivated the dismissals. Carol Lam, for example, had successfully prosecuted Republican Congressman Randy "Duke" Cunningham for bribery following a high-profile investigation and was "in the midst" of pursuing additional high-ranking Republican officials when she was terminated. See Pl.'s Mot. at 8; see also Report of the Committee on the Judiciary, House of Representatives, H.R.Rep. No. 110-423 (2007) (hereinafter "Contempt Report"), at 17. John McKay had refused requests by Republican officials to pursue accusations of voter fraud during the 2004 Washington gubernatorial race. Id. Similarly, David Iglesias was contacted by two Republican Members of Congress from New Mexico (Senator Pete Domenici and Representative Heather Wilson) who were disappointed to learn that Iglesias had no plans to seek indictments against members of the opposing political party in the run-up to the 2006 congressional elections. Pl.'s Mot. at 8; see also Contempt Report at 25.

As these events came to light, the Committee on the Judiciary—a standing Committee of the House of Representatives— commenced an investigation into the forced resignations in early 2007. See Pl.'s Stmt. of Facts ¶ 8. Citing its authority under House Rule X, which provides that the Judiciary Committee's oversight responsibilities extend to issues relating to judicial proceedings and criminal law enforcement, the Committee declared that it aimed to:

(1) investigate] and expos[e] any possible malfeasance, abuse of authority, or violation of existing laws on the part of the Executive Branch related to these concerns, and (2) consider[ ] whether the conduct uncovered may warrant additions or modifications to existing Federal Law, such as more clearly prohibiting the kinds of improper political interference with prosecutorial decisions as have been alleged here.

Id. ¶ 10 (quoting Contempt Report at 7). The Committee heard the testimony of six of the dismissed U.S. Attorneys during the first hearing held on March 6, 2007. Id. ¶ 11. Shortly thereafter, Committee Chairman John...