Playing Constitutional Chicken

Here's the press release from the Judiciary Committee: "'We will not allow the administration to steamroll Congress,' [Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee chairman] said. 'Under our system of checks and balances, Congress provides oversight of the executive branch to make sure that government power is not abused. The administration's extreme claims to be immune from the oversight process are at odds with our constitutional principles on which this country was founded, and I am confident the federal courts will agree.' . . .

"The Judiciary Committee, as plaintiff, is asking the court to find the following:

"(1) Ms. Miers is not 'immune' from the obligation to appear before the committee in response to a duly authorized, issued and served committee subpoena;

"(2) Ms. Miers and Mr. Bolten must produce privilege logs identifying all documents withheld on grounds of executive privilege;

"(3) Executive privilege does not cover documents not involving the president or undertaken directly in preparation for advising the president or whose contents are widely-known, previously released or previously the subject of extensive, authorized testimony, and that Ms. Miers's and Mr. Bolten's claims of executive privilege are, in any event, overcome by the committee's compelling need for the subpoenaed testimony and documents.

"(4) that Ms. Miers is required to appear before the committee to respond to questions put to her pertinent to the investigation and to invoke executive privilege only if and when appropriate;

"(5) that Ms. Miers and Mr. Bolten are required to provide, as required by the subpoenas, a detailed privilege log, identifying by author, recipient, date and subject matter those documents responsive to the subpoena that have been withheld on executive privilege grounds;

"(6) that Ms. Miers and Mr. Bolten are required to produce all non-privileged documents responsive to the subpoenas."

Here's the actual complaint, in which the committee states that "the uncompleted investigation . . . has uncovered substantial evidence to support allegations [that the administration] injected partisan considerations into the forced resignations and retentions of U.S. Attorneys."

Here Comes the Judge

The case will be heard by Judge John D. Bates-- which doesn't bode particularly well for the plaintiffs. He was appointed to the bench by Bush in 2001. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court -- a placement generally reserved for reliable conservatives.

Last year, he dismissed a lawsuit filed by former CIA officer Valerie Plame and her husband against Vice President Cheney and other top officials over the Bush administration's disclosure of Plame's name and covert status to the media. He wrote in his opinion that, while the suit raised "important questions relating to the propriety of actions taken by our highest government officials," the defendants were immune from liability because their actions came as a part of their official job duties.

In December, Bates refused to release documents related to the National Security Agency's warrantless wiretapping program. He wrote that "enhanced public scrutiny could provide an additional safeguard against mistakes, overreaching and abuse" but concluded that such benefits did not outweigh the potential damage of disclosure, which he called "real and significant, and, quite frankly, beyond debate."