White House aides must appear before Congress, judge rules

McClatchy NewspapersJuly 31, 2008 

WASHINGTON — A federal judge Thursday rejected the Bush administration's sweeping assertion of executive privilege and ruled that two White House aides must answer subpoenas from Congress.

However, U.S. District Judge John Bates said that the aides could cite executive privilege and refuse to answer specific questions once they were in front of Congress.

The 93-page ruling by the Bush appointee is a significant setback for the administration as it seeks to prevent Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers from providing Congress with information about the firings of nine U.S. attorneys.

The Bush White House has maintained that presidential aides have absolute immunity from congressional subpoenas. It argues that the doctrine of executive privilege provides that protection to ensure confidential communications between the president and his aides. That position raised questions involving the separation and balance of powers under the Constitution between the legislative and executive branches.

Bates said the courts had a crucial role in resolving such disputes and that administration officials held "a discredited notion of executive power and privilege."

"It is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege," he wrote.

House Judiciary Committee Chairman John Conyers, D-Mich., hailed the decision as "landmark" and vowed to call Miers as early as September.

"The 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.

Bates called his decision limited, however.

While he rejected the executive branch's claim of "absolute" immunity, he allowed the White House to decline to answer specific questions for legitimate reasons, provided that administration figures do so in person before lawmakers. He also ordered administration officials to provide nonprivileged documents, but didn't order them to divulge the entire list of documents that they assert are protected by executive privilege.

"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," he wrote. "There may be some instances where absolute (or qualified) immunity is appropriate for such advisors, but this is not one of them."

Bates said the decision didn't apply to the president.

He urged both sides to negotiate a resolution and warned Congress against relying on its inherent contempt powers, which allow it to arrest witnesses who refuse to testify. Such an action, he wrote, "would provoke an unseemly constitutional confrontation that should be avoided."

Justice Department spokesman Peter Carr said he couldn't comment on the ruling and referred questions to the White House.

White House spokeswoman Dana Perino said the Justice Department was reviewing the ruling to determine whether to appeal. She said the administration disagreed with the decision, but she noted its limits.

"The court did not rule on the executive privilege claim, it did not order anyone to testify on privileged matters, and it did not order anyone to produce privileged documents," she said.

The ruling gave Democrats new hope in their quest for answers in their investigation into the firings. Administration critics have accused the White House and Justice Department of targeting the prosecutors because they'd rebuffed Republican demands to seek weak voter-fraud cases against Democrats or because they'd investigated Republican politicians.

The investigation stalled after top Justice officials, including former Attorney General Alberto Gonzales, had testified that they couldn't explain the firings or identify who was behind them.

The ruling could influence the administration's response to a dispute over whether former presidential adviser Karl Rove should testify about allegations that the White House was interfering with politically sensitive federal prosecutions.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., sent letters Thursday to Rove's attorney, Robert Luskin, and to White House Counsel Fred Fielding, asking them to advise his committee by Aug. 7 when Rove and Bolten would appear to testify.

Rep. Lamar Smith, R-Texas, the ranking Republican on the House Judiciary Committee, said he was pleased the court ruled in Congress' favor but remained concerned that the information Democrats requested "does not merit a constitutional showdown."

"Unfortunately, today's victory may be short-lived," he said. "If the administration appeals the ruling, our congressional prerogatives will once again be put at risk."

House Speaker Nancy Pelosi, D-Calif., urged the administration to comply with the decision and "understand that these documents belong to the American people."

"I don't think we should have to keep fighting this," she said.

(Renee Schoof contributed to this article.)

McClatchy Newspapers 2008

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