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well we are certianly past the polarization threshold
3. Judge John Bates’ ruling in Miers Although district court decisions do not have the same precedential force as rulings by the Supreme Court and courts of appeals, one ruling from the U.S. District Court for the District of Columbia subsequent to the D.C. Circuit’s Judicial Watch decision may provide further insight into the scope of executive privilege today. In House Committee on the Judiciary v. Miers, Judge John Bates held that neither current nor former senior advisers to the president are absolutely immune from compelled congressional process—rejecting a claim that “executive privilege” protected the White House chief of staff or the former White House counsel from compliance with otherwise valid congressional subpoenas. In the process, Bates rejected the White House’s argument that the Supreme Court’s 1974 Nixon decision was limited to criminal subpoenas:
Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is “necessary to the effective functioning of courts and legislatures.” Thus, Congress’s use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury’s in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here. And it is certainly the case that if the President is entitled only to a presumptive privilege, his close advisors cannot hold the superior card of absolute immunity.
The district court did not reach the merits of the privilege claim in Miers. And the government’s appeal was voluntarily dismissed after the parties settled. But Bates’ ruling stands as the only decision to date that expressly rejects an effort to distinguish the Nixon analysis as not applying to congressional subpoenas, and it rejects the argument that current or former senior White House advisors enjoy absolute testimonial immunity vis-à-vis Congress. If other courts follow Bates’ lead, that would have significant ramifications for executive privilege claims against Congress going forward. Much remains unanswered by the courts, but the guidance from Espy, Judicial Watch and Miers should go a long way toward separating colorable privilege claims from those that are patently meritless. 4. Lessons for the future In its 1977 ruling in United States v. AT&T Co., the D.C. Circuit refused to resolve a dispute between the DOJ and the House of Representatives arising out of a subpoena the House had issued to a private company for records that DOJ claimed were protected by executive privilege. As Judge Harold Leventhal wrote: The framers … relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.
originally posted by: CynConcepts
I must agree that Trump was not in office when Russia was allowed to annex Crimea from Ukraine. That was the prior administration who refused to assist our ally with weapons.