Waiting for Rove

About Inherent Contempt

In asking the court not to take the case in the first place, administration lawyers argued (see my June 24 column) that the legislative branch had not exhausted its legal options -- specifically suggesting that Congress could have chosen to use its powers of "inherent contempt" and had its own sergeant-at-arms arrest Miers and Bolten.

Bates sided with Congress on this issue as well -- sort of. "[T]he Executive takes the Committee to task for failing to utilize its inherent contempt authority. But there are serious problems presented by the prospect of inherent contempt, not the least of which is that the Executive is attempting to have it both ways on this point," Bates wrote.

In other cases, Bates wrote, this and previous administrations have argued that senior executive-branch officials are -- you guessed it -- immune from inherent contempt. And Bates concurred, writing that "there are strong reasons to doubt the viability of Congress's inherent contempt authority vis-a-vis senior executive officials. . . .

"[I]mprisoning current (and even former) senior presidential advisors and prosecuting them before the House would only exacerbate the acrimony between the two branches and would present a grave risk of precipitating a constitutional crisis. Indeed, one can easily imagine a stand-off between the Sergeant-at-Arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him," Bates wrote.

"[E]ven if the Committee did exercise inherent contempt, the disputed issue would in all likelihood end up before this Court, just by a different vehicle -- a writ of habeas corpus brought by Ms. Miers and Mr. Bolten. In either event there would be judicial resolution of the underlying issue."

Was Bush Involved?

Bates also noted -- but didn't express an opinion about -- a central contradiction of the White House position. Namely: How can the White House claim executive privilege regarding a matter that it simultaneously claims the president wasn't involved in?

Bates wrote: "There is some ambiguity over the scope of the President's involvement in the decision to terminate the U.S. Attorneys in this case. The Committee contends that the White House has asserted that the 'President was not involved in any way . . . and that he did not receive advice from his aides about the U.S. Attorneys and he did not make a decision to fire any of them.' . . . That assertion is based on a statement made by Acting White House Press Secretary Dana Perino on March 27, 2007. The Executive, however, now maintains that the Committee 'substantially overstates the record on this point.' . . . As the Executive sees it, the record simply indicates that 'the President was not involved in decisions about who would be asked to resign from the department,' but 'does not reflect that the President had no future involvement' in any capacity. . . . Given the Court's limited decision here, it is unnecessary to address this factual dispute at this time. The Court notes, however, that the degree and nature of the President's involvement may be relevant to the proper executive privilege characterization."

Bush's Asian Media Interviews

After a weekend in Kennebunkport, Bush is headed off on Monday for a farewell tour of Asia, visiting South Korea and Thailand before attending the Olympic Games in Beijing. On Wednesday, he sat down for a slew of interviews with Asian journalists.

Dan Eggen wrote in yesterday's Washington Post about the controversy surrounding his decision to include two unusual media outlets: the People's Daily newspaper and the Central China Television network, both controlled by China's ruling Communist Party.

One particular concern was that CCTV could edit the interview into a propaganda vehicle, cutting any comments perceived as critical of the Chinese government.

But the White House transcript of Bush's interview with CCTV's Fuqing Yang was released yesterday afternoon, and it shows Bush being so obsequious that no editing was necessary. Bush didn't say a word about human rights concerns or about Tibet. He made no mention of his meeting on Tuesday with five Chinese dissidents, to whom he promised he would "carry the message of freedom" to the Olympics. (See Wednesday's column.)

Instead, he talked of his respect for Chinese people, his trip to Beijing in 1975 to visit his father, his interest in seeing Yao Ming play basketball, and his excitement about watching the games with his family.