That’s lawyerese for “complete bullsh*t.” It’s not what you ever want a federal judge to say about a claim made in court by the Department of Justice on behalf of the President of the United States. Or, rather, it’s not what you want the Department of Justice to ever force a judge to say by making an utterly bogus claim; the credibility of the Administration in the courts is a national resource, one of the many this crew of clowns and grifters has wreckd. Presumably the judge, a Bush appointee himself, wouldn’t have said it if he hadn’t been forced to be the outrageousness of the arguments presented to him.
The case involves the Administration’s claim of an absolute “executive privilege” against Congressional subpoena, a claim that, as the opinion notes, was shredded in Nixon v. United States. (Yes, I know that would be a good title for a biography of Tricky Dick, but it’s also the name of the Watergate Tapes case.)
Clearly the Bushoids think they can just run the clock. So they can, if the Congress waits on the courts. But with this decision in hand, I’d favor the self-help approach. Once the recalcitrant ex-officials have been arrested and are in the custody of the Sergeant-at-Arms, the central doctrine asserted by the Administration — that the courts shouldn’t intervene in fights between the two “political” branches — works for the Congress and not against it. Given how unpopular the President is, and how unpopular the Congress is mostly for being spineless, I bet the net political fallout is positive.
…one power that Congress has at its disposal is inherent contempt. Following a citation for congressional contempt, Congress could dispatch the Sergeant-at-Arms to detain Ms. Miers and Mr. Bolten in preparation for a trial before Congress. See Morton Rosenberg, Cong. Research Serv., Congress’s Contempt Power: Law, History, Practice, and Procedure, No. 34-097, at 15 (2008), available [here]. In response to such action, both sides here appear to agree (see Tr. at 85) that Ms. Miers and Mr. Bolten would likely file a writ of habeas corpus with this Court to challenge the legality of their detention.
As a side-benefit, this might remind the wingers of why habeas was a good idea in the first place.