Defeated in Court -- Again

Friday, August 1, 2008

ALBERT EINSTEIN is said to have described insanity as doing the same thing over and over and expecting different results. The Bush administration would be wise to take heed of these words.

Obsessed with stretching the limits of executive power, the administration has time and again engaged in legal battles or unilateral action in defense of warped interpretations of the law. Time and again, it has been rebuffed by conservative and liberal judges alike. The result: The administration has trampled on the rule of law, and the backlash against its actions has whittled away at the foundations of legitimate executive power.

The latest example is the thorough, thoughtful and devastating opinion issued yesterday by Judge John D. Bates of the U.S. District Court for the District of Columbia, which eviscerates the administration's arguments for refusing to allow former White House counsel Harriet Miers to appear before Congress about the firing of nine U.S. attorneys. The House Judiciary Committee brought suit to enforce its subpoena of Ms. Miers after failing to reach a compromise with the White House over documents and witnesses. In his 93-page decision, Judge Bates concludes that the White House had no legal basis for its position and that Ms. Miers is bound by the subpoena to attend a congressional hearing. Once sworn in, Ms. Miers may still attempt to invoke executive privilege; whether she is justified or not could be a matter for future litigation.

Judge Bates, by the way, is no knee-jerk liberal: He's an Army veteran, a former prosecutor, a former deputy independent counsel in the Whitewater investigation of President Bill Clinton and a 2001 appointee of President Bush.

The White House is almost certain to appeal the ruling and may be expecting a more hospitable reception from the generally conservative U.S. Court of Appeals for the D.C. Circuit. That prospect should give Congress pause and prompt a renewal of efforts to reach a compromise. For the better part of 200 years, these types of disputes have generally been worked out in the political arena, without the need for judicial intervention. It is still the best approach, as even Judge Bates acknowledges: "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."

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