Judge Rules White House Aides Can Be Subpoenaed

In essence, Judges Bates held that whatever immunity from
Congressional subpoenas that executive branch officials might enjoy,
it is not “absolute.” And in any event, he said, it is up to the
courts, not the executive branch, to determine the scope of its
immunity in particular cases.


Yeah, yeah, I know, you think it's political. It is more whether the
rule of law is still with us.


August 1, 2008
Judge Rules White House Aides Can Be Subpoenaed
By DAVID STOUT

WASHINGTON — President Bush’s top advisers must honor subpoenas issued
by Congress, a federal judge ruled on Thursday in a case that involves
the firings of several United States attorneys but has much wider
constitutional implications for all three branches of government.

“The executive’s current claim of absolute immunity from compelled
Congressional process for senior presidential aides is without any
support in the case law,” Judge John D. Bates ruled in United States
District Court here.

Unless overturned on appeal, a former White House counsel, Harriet E.
Miers, and the current White House chief of staff, Joshua B. Bolten,
would be required to cooperate with the House Judiciary Committee,
which has been investigating the controversial dismissal of the
federal prosecutors in 2006.

While the ruling is the first in which a court has agreed to enforce a
Congressional subpoena against the White House, Judge Bates called his
93-page decision “very limited” and emphasized that he could see the
possibility of the dispute being resolved through political
negotiations. The White House is almost certain to appeal the ruling.

It was the latest setback for the Bush administration, which maintains
that current and former White House aides are immune from
congressional subpoena. On Wednesday, the House Judiciary Committee
voted along party lines to recommend that Karl Rove, a former top
political adviser to President Bush, be cited for contempt for
ignoring a subpoena and not appearing at a hearing on political
interference by the White House at the Justice Department.

Although Judge Bates did not specifically say so, his ruling, if
sustained on appeal, might apply as well to Mr. Rove and his refusal
to testify.

The House has already voted to hold Ms. Miers and Mr. Bolten in
contempt for refusing to testify or to provide documents about the
dismissals of the United States attorneys, which critics of the
administration have suggested were driven by an improper mix of
politics and decisions about who should, or should not, be prosecuted.

Judge Bates, who was appointed to the bench by President Bush in 2001,
said Ms. Miers cannot simply ignore a subpoena to appear but must
state her refusal in person. Moreover, he ruled, both she and Mr.
Bolten must provide all non-privileged documents related to the
dismissals.

Ms. Miers and Mr. Bolten, citing legal advice from the White House,
have refused for months to comply with Congressional subpoenas. The
White House has repeatedly invoked executive privilege, the doctrine
that allows the advice that a president gets from his close advisers
to remain confidential.

In essence, Judges Bates held that whatever immunity from
Congressional subpoenas that executive branch officials might enjoy,
it is not “absolute.” And in any event, he said, it is up to the
courts, not the executive branch, to determine the scope of its
immunity in particular cases.

“We are reviewing the decision,” Emily Lawrimore, a White House
spokeswoman, said. Before the decision was handed down, several
lawyers said it would almost surely be appealed, no matter which way
it turned, because of its importance.

Democrats in Congress issued statements in which they were quick to
claim victory in the struggle with the administration over the
dismissals of the federal prosecutors and other occurences in the
Justice Department, and that they looked forward to hearing from the
appropriate White House officials.

“I have long pointed out that this administration’s claims of
executive privilege and immunity, which White House officials have
used to justify refusing to even show up when served with
congressional subpoenas, are wrong,” said Senator Patrick J. Leahy,
Democrat of Vermont who is chairman of the Senate Judiciary Committee.

Mr. Leahy’s House counterpart in the House had a similar reaction.

“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,” said Representative John D. Conyers, the
Michigan Democrat who is chairman of the House Judiciary Committee.

http://www.nytimes.com/2008/08/01/washington/01SUBPOENA.html?_r=1&hp=&oref=slogin&pagewanted=print

http://www.washingtonpost.com/wp-dyn/content/article/2008/07/31/AR2008073101238.html?hpid=topnews
http://balkin.blogspot.com/2008/07/this-is-really-pretty-amazing.html
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0409-49
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