When Josh Bolton refused to produce documents and when Harriet Miers refused to even show up to testify, both refusing to honor subpoenas lawfully issued, we might say the Executive won a round in the eternal struggle between the two branches.

But the Congress took it to court, Judge John Bates' court it turned out and he has not always been a friend of the House, so it looked as if Round 2 was going to the Executive as well.

Today, Judge Bates released a 93-page ruling which more or less demolishes and/or dismisses the Executive's claims that Congress lacked a cause for action or even had standing to bring the case.

Clearly Judge Bates is looking forward to negotiation between the parties to avoid unseemly confrontation.  But he has strengthened Congress's hand considerably.

And there are implications for Mssr Rove as well.  Now Conyers can act, if he so chooses.

Some passages from today's opinion:

"noncompliance with a duly issued subpoena is a quintessential informational injury.

To recap, the Committee has issued subpoenas to two high-ranking executive branch officials who have refused to comply, citing executive privilege. The Committee’s attempt to pursue criminal prosecution of its contempt of Congress citation was thwarted by the Executive.

Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an unseemly constitutional confrontation that should be avoided. Cf. United States v. Nixon, 418 U.S. at 691-92 (concluding that forcing the President to disobey a court order to obtain appellate review would create an unseemly, unnecessary constitutional confrontation between the branches). Thus, the Committee filed this suit to vindicate both its right to the information that is the subject of the subpoena and its institutional prerogative to compel compliance with its subpoenas. A harm to either interest satisfies the injury-in-fact standing requirement. Clear judicial precedent, along with persuasive reasoning in OLC opinions, establishes that the Committee has standing to pursue this action and, moreover, that this type of dispute is justiciable in federal court. <b>Consequently, the Executive’s motion to dismiss for lack of standing will be denied.</b> " [boldface mine]

"Clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process. Ms. Miers is not excused from compliance with the Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be made. <b>Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate.</b>38  And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177. [boldface mine]
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There is more but this covers the essence of the ruling in terms of what happens next.  The Court dismissed the Executive's claim of absolute immunity and directs Miers to appear before the Committee where she may invoke privilege if she so chooses.  But she must appear.  Further, Judge Bates directed the WH to produce detailed lists of the documents under subpoena where he will assumedly make some kind of determination as to their subsequent production, if at all, to Congress.

Rove's position of contumacy is now much weakened and I expect TPM news junkies will hear more developments in that direction soon enough.

All contingent on the Executive not appealing, of course.

I wish this was a spoof, but it isn't.  Here is legislation introduced last week by a House Republican.  This is the kind of circus, the GOP has reduced governance to....

HR 6615 IH

110th CONGRESS

2d Session

H. R. 6615

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

July 24, 2008

Mr. GOHMERT introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Giving Inmate Terrorists More Opportunities (GITMO) Act of 2008’.

SEC. 2. FINDINGS.

Congress finds the following:

(1) The United States Supreme Court issued an opinion styled Boumediene v. Bush on June 12, 2008.

(2) Justice Anthony Kennedy, in the court’s majority opinion, held that foreign terrorism suspects held at the Guantanamo Bay naval base in Cuba have constitutional rights to challenge their detention in United States courts.

(3) This is an obvious effort on the part of the Supreme Court to micromanage the detainment and disposition of detainees in the War on Terror who are dedicated to destroying innocent people and the American way of life.

(4) The United States Supreme Court clearly needs increased opportunity to oversee the handling of the enemy combatants, as it has seen fit to take a greater role in managing the Global War on Terror, which is a duty previously exercised by the Executive Branch.

(5) There can be no better way for the United States Supreme Court to exercise its new self-appointed war powers than to house the prisoners whom it has taken a greater role in overseeing.

SEC. 3. TRANSPORTATION AND DETAINMENT OF ENEMY COMBATANTS.

(a) Transportation- The Secretary of Defense shall immediately transport all enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court shall hold the prisoners on the Court grounds, confined by adequate fencing.

(b) Shelter on Supreme Court Building Grounds- The Secretary of Defense, in conjunction with Justice Anthony Kennedy, the author of the majority opinion in Boumediene v. Bush, is directed to provide shelter for the detainees outside the United States Supreme Court building, but on the building grounds. The Secretary of Defense shall provide guards to watch over the prisoners and shall implement a system to ensure that the prisoners receive the appropriate amount of food and water. Should the detainees need the use of restroom facilities, they shall use the facilities inside the United States Supreme Court building. The Chief Justice, if the Chief Justice so chooses, may perform the duties of Justice Anthony Kennedy under this subsection.

(c) Guard Duty- If any of the nine Supreme Court justices desire at any time to stand guard over the prisoners, or to provide the prisoners with their meals or water, or both, then the justices shall be permitted to perform these functions whenever they want.

SEC. 4. ENFORCEMENT.

If either the Secretary of Defense or any justice of the Supreme Court refuses to carry out their duties under this Act, then their respective department or court shall receive funding for the next fiscal year at half the level of funding appropriated for the current fiscal year, or until such time as the Supreme Court no longer desires to micromanage the prisoners who have sworn to destroy our way of life.
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If you had read this anywhere else, you would be justified in thinking it were an Onion spoof. But this is the kind of stunt they pull routinely.

This vindictive, mean-spirited mind-set is currently dominant in that Party.  It is why Obama must be elected and we return sizeable majorities to both chambers.