By Patrick Appel
Marty Lederman parses today's decision:
1. First [Judge Bates] unequivocally rejects the centerpiece of the Administration's privilege argument: the notion that the House has no legitimate interest in inquiring with respect to why the U.S. Attorneys were fired. At pages 39-41, Judge Bates explains why Congress does have a legitimate and important interest in getting to the bottom of what happened to the U.S. Attorneys, and why, and then at page 89 he adds, for good measure, that "[n]otwithstanding its best efforts, the Committee has been unable to discover the underlying causes of the forced terminations of the U.S. Attorneys. The Committee has legitimate reasons to believe that Ms. Miers's testimony can remedy that deficiency. There is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to testify."
2. Second, the court recognizes that the principal argument in favor of the Administration's absolute immunity claim was the theory that communications of close presidential advisers are categorically privileged, at least as against congressional inquiry: Why should such an advisor have to appear, reasoned DOJ, if she could legitimately assert privilege as to every question involving what she did and her communications with others? Judge Bates rejects this notion, too, at pages 83-86: "At bottom," Judge Bates explains, "the Executive's interest in 'autonomy' rests upon a discretited notion of executive power and privilege." Even the President himself "is entitled only to a presumptive privilege," and therefore "his close advisers cannot hold the superior card of absolute immunity. . . . Presidential autonomy, such as it is, cannot mean that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress's historical oversight function."
3. Third, the court does not resolve the factual dispute about whether and to what extent President Bush himself was involved in the decisions to fire the U.S. Attorneys. The court does pointedly note, however (note 37), that to the extent the President was not involved, any privilege claims will be on decidedly weaker ground.
The rest is here.