The Impeachment Hearing Room

Federal judge rules against Miers, White House on subpoenas

A federal judge ruled Thursday that top advisers to President Bush are not immune from congressional subpoenas, striking a blow to former White House Counsel Harriet Miers, current White House Chief of Staff Josh Bolten and other current and former administration officials who have claimed executive privilege in refusing to testify before Congress.

The House Judiciary Committee wanted to question Miers about the firing of nine former U.S. attorneys and review White House paperwork related to their dismissal. The Bush administration argued that the documents and the former aide were protected under separation of powers and refused to allow Miers or Bolten to respond to the subpoenas. Bolten, as White House chief of staff, was subpoenaed by the panel for documents.

But U.S. District Judge John Bates disagreed with the White House argument, ruling that Miers must appear before Congress in order to assert an assert executive privilege claim.

Bates also rejected the White House's argument of absolute immunity in refusing to turn over a detailed list, known as a"privilege log," of documents it withheld from the commttee. Bates, instead, said that the White House must provide the committee with more information before making any decision.

The text of Bates' opinion is available here.

The decision is a vindication for House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and other Democrats who supported the precedent-setting civil lawsuit. Some Democrats, backed by the GOP leadership, had opposed the lawsuit on the grounds that if the House lost, it would give more power to the executive branch at Congress' expense.

"Today’s landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law," Conyers said in a statement. "Judge Bates’ decision makes clear that the Congress had the right to subpoena Harriet Miers to learn of her role in the U.S. attorney firings, that her claim to be immune from subpoena was invalid and that the committee was entitled to challenge that claim in court."

Speaker Nancy Pelosi (D-Calif.) said the ruling "strengthens our hand as we go forward" with congressional investigations. When asked if it was a victory for Democrats, Pelosi said it "was a victory for all of those who believe in the separation of powers."

Pelosi, though, declined to reveal her intentions on a contempt resolution approved by the Judiciary Committee against former White House Deputy Chief of Staff Karl Rove. The Judiciary Committee subpoenaed Rove to question him about any knowledge he may have regarding the prosecution of former Alabama Gov. Don Siegelman (D), but Rove has refused to appear before the committee in open session. Pelosi said, "I'll be making an announcement on that, but not right now."

Minority Leader John A. Boehner (R-Ohio) dismissed the court ruling as a hollow victory for Democrats since the White House is very likely to appeal the decision, delaying a final determination of the case until after Bush leaves office next January. Republicans walked out of the chamber when Democrats brought the contempt resolution to the floor.

"I haven't seen the ruling, but it is sure to be appealed and [will stretch on] into next year where it wil be a moot issue," Boehner said.

Boehner called it a "political ruse," adding, "Let the courts sort it out."

Bates, a Bush appointee, acknowledged the extraordinary aspects of the case, a battle between two co-equal brances of government, but in the end, something he noted "with which federal courts are very familiar."

Bates rejected the Bush administration's argument that senior presidential aides are totally immune from having even to respond to congressional subpoenas, particularly in cases of executive privilege. Bates did not rule on whether Miers and Bolten could claim executive privilege in refusing to answer questions from congressional investigators; instead, Bates found that White House aides must respond to the subpoenas and then raise their executive-privilege claim.

"Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process," Bates wrote. "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."

Bates added: "The court holds only that Ms. Miers (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute. There may be some instances where absolute (or qualified) immunity is appropriate for such advisors, but this is not one of them."