while this trial court decision
will no doubt be appealed, and quickly,
by the cheney/bush attorney-operatives,
it is refreshing to see some serious legal
scholarship applied to this unprecedented
notion of “absolute immunity” — which is
a polite way of saying “it doesn’t really
exist — for all intents and purposes. . .”
just suck on that a while, dick.
let’s read from judge bates’ opinion [a pdf file], then:
. . .After all, from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“[i]t is emphatically the province and duty of the judicial department to say what the law is”), through United States v. Nixon, 418 U.S. 683, 705 (1974) (the judiciary is the ultimate arbiter of claims of executive privilege), to Boumediene v. Bush, 553 U.S. —, 128 S. Ct. 2229, 2259 (2008) (rejecting regime in which the political branches may “switch the Constitution on or off at will” and, rather than the judiciary, “say ‘what the law is’”), the Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive issues of separation of powers. In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now “of a type that are traditionally justiciable” in federal courts, United States v. Nixon, 418 U.S. at 697 (citation omitted), and certainly not unprecedented, as the Executive contends.
Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):
neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.
. . .While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. . .
[Emphasis supplied; in the last paragraph, above, Judge Bates was quoting from Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).]
yep — suck on that, a while — mr. cheney.
your day is coming.