Presidential advisers and immunity (Bates ruling)

MARTY LEDERMAN:

This is not the first Administration to have articulated the view that certain presidential advisers are immune from congressional process: It has been a mantra in Administrations of both parties for some time, which often have permitted close presidential advisors to testify before Congress while at the same time claiming to "preserve" a right to object to compulsory process. And in 1999, Attorney General Reno memorialized such an argument in Part II of this formal opinion; and that opinion became the basis for an an even broader assertion of such immunity in an opinion by Steven Bradbury last year. Judge Bates today concludes -- quite understandably, in my view -- that he is "not at all persuaded by the Reno and Bradbury opinions," because unlike other controversial OLC opinions on privilege authored by Ted Olson and Chuck Cooper, "which are exhaustive efforts of sophisticated legal reasoning, bolstered by extensive citation to judicial authority, the Reno and Bradbury OLC opinions are for the most part conclusory and recursive."

So the argument itself was not new. But the Bush Administration pushed the argument much more aggressively than any Administration before it: It claimed for the first time that such immunity extends even to former officials, because everything they did was absolutely privileged; it played hardball with Congress on the question where other Administrations have acceded to such testimony; and for the first time ever, the Executive had the gumption to ask a court to ratify its immunity claims.

Quite frankly, it would not have been difficult for Judge Bates to find ways to avoid reaching the merits question -- either by adopting one of the Executive's standing, cause-of-action or prudential arguments, or by simply delaying his decision until January, when the posture of the dispute might well be changed by the new Congress and President. He did not do so, evidently in part because he so strongly believed that the acceptance of the immunity argument would be "an unacceptable result," and would so fundamentally and improperly shift the balance of powers between the political branches.

It bears mentioning that the judge who so ruled is a Republican jurist who worked on the Starr Whitewater team, and who was appointed to the bench by the sitting President Bush. And he ruled with the Bush Administration's claims to executive secrecy in the Cheney Task Force case (see note 38 of today's opinion, distinguishing it) -- he is, in other words, very solicitous of the legitimate needs of executive confidentiality. Which makes today's decision all the more remarkable. Judge Bates was not only taken aback by the Administration's theory of immunity; it is also fair to assume, as his opinion suggests, that he (a former prosecutor) was alarmed by the U.S. Attorney dismissals themselves.

When the history of the Bush Administration's executive aggrandizement campaign is finally written, a very large and important part of that story -- a central theme in Jane Mayer's new book, for instance -- is just how many very strongly conservative Republicans resisted the Cheney/Addington/Gonzales/Rove agenda. READ IT ALL