In a 93-page opinion by Judge John D. Bates (a Bush-43 appointee), the US District Court ruled that White House aides could be subpoenaed, and that the "asserted absolute immunity claim [was] entirely unsupported by existing case law."
The wide-ranging opinion cited both Marbury v. Madison (5 U.S. 137 at line 177) and Boumediene v. Bush (558 U.S. ___ at line 128), two cases decided 205 years apart - and of course, no decision dealing with the limits on the power of the Executive is complete without a shout-out to United States v. Nixon (418 U.S. 683 at line 705)! Basically, it is the job of the Judicial Branch to legislate disputes between the other two co-equal branches, and as such, this civil action is well within the rights of the US District Court to hear, which is something that the Bush Administration has lately been trying to subvert (as in the legal no man's land that they have attempted to create in Guantanamo). It's completely and totally fucked up that in order to get any oversight on the Executive Branch, the Legislative Branch has to take them to court, but that's the environment in which we find ourselves today, and the only thing that might offer a modicum of hope is that there is no way for George Bush to remain in office after January 20, 2009.
Sadly, House Republicans are fine with the ruling, as if they drag their feet while the Bush Administration appeals this decision, the subpoenas are no longer in effect at the end of this Congress, and that's actually the strategy stated by Minority Leader John Boehner. However, unless the GOP takes over the House and has power over the Committee Assignments to the point that voting down party lines results in no subpoenaing, the Judiciary Committee will reissue the subpoenas, and they will have effect until 2011.
However, the greatest irony is that should anything come of this, any recommendations or actions need to be given to the Justice Department in order for the Executive Branch (the one that upholds and enforces the laws as created by the Legislative Branch and interpreted by the Judicial Branch) to carry out any sort of actual punishment. So, yet again, Bush is betting on McCain, because an Obama Administration would probably be happy to pursue this matter further, and just as in the manner of a Whitewater investigation leading solely to President Clinton getting his dick sucked, it wouldn't be surprising for a similar investigation of illegal and political attorney firings and discriminatory hiring practices to lead to abuses at Guantanamo, abuses of prewar intelligence on Iraq, and other damning discoveries.
I hope that there's a Department of Justice willing to "fight against corruption... to keep our own houses clean" - that's a John Ashcroft quote there - instead of one that participates in the discriminatory hiring practices that it is actually supposed to investigate and eradicate. The politicization of Justice is unacceptable, and it hurts us all. Furthermore, the courts have consistently ruled that the three branches of government are co-equal, and there's no way that the constitutional land grab power trip that the Executive has been on as of late is acceptable, nor will it stand up to the strict scrutiny that the federal courts are starting to apply to it. I can only reiterate my hope that soon (read: Jan 20, 2009) there's a Department of Justice willing to investigate this matter fully in pursuit of justice, and that we don't have to worry about the DOJ covering their own asses in pursuit of avoiding embarrassment.
This post was cross-posted at BrownView.