WaPo: Judge Rules Bush Aides Must Obey Congressional Subpoenas
A federal judge today ruled that a former top aide to President Bush is required to appear before a congressional committee, rejecting an argument by the White House that she was shielded by executive privilege from giving such testimony.
In rejecting the White House position, U.S. District Judge John D. Bates ruled that former White House counsel Harriet E. Miers is legally required to appear before the House Judiciary Committee.But, Bates ruled, Miers can invoke executive privilege in response to specific questions. The White House had argued that Miers and Chief of Staff Joshua B. Bolten were shielded from appearing or providing documents to the committee by absolute immunity under the legal doctrine of executive privilege.
"The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context," Bates wrote in a 93-page opinion. "That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law."
Hey judge, tell us how you really feel!
In case you missed it, Mark Kleiman translates:
"Without any support in the case law." 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.
GU's Marty Lederman does the analysis:
It is an extraordinarily thorough, scholarly and thoughtful opinion. It is also, IMHO, correct on the merits. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration's principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter -- the notion that because the subject matter of the investigations is presidential removal of the U.S. Attorneys, Congress has no legitimate oversight function at all. The court quite correctly rejects this view...
It bears mentioning that the judge who so ruled is a Republican jurist who worked on the Starr Whitewater team, and who was appointed to the bench by the sitting President Bush. And he ruled with the Bush Administration's claims to executive secrecy in the Cheney Task Force case (see note 38 of today's opinion, distinguishing it) -- he is, in other words, very solicitous of the legitimate needs of executive confidentiality. Which makes today's decision all the more remarkable.
Glenn Greenwald continues:
In unusually strong language, the court pointed out that the President's claim that his aides enjoyed absolute immunity from Congressional investigations was "unprecedented" and "without any support in case law" (p. 3). Like so many perverse claims of absolute presidential authority, this claim was plainly contrary to the core principles of how our country has long functioned: "Federal precedent dating as far back as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas," Judge Bates wrote (p. 31)....
That the Bush administration's claim was purely lawless has long been obvious. After all, the Supreme Court, in 1974, already explicitly ruled (in the context of a criminal investigation) that Richard Nixon lacked exactly the absolute immunity that Bush officials claimed here....All along, the refusal of Bush aides to testify (and today's ruling obviously applies to Karl Rove as well) was nothing more than another lawless attempt by the administration to shroud everything it does in secrecy and shield itself completely from accountability of any kind. Indeed, as the court pointed out today, quoting a 1975 Supreme Court case, the power to compel testimony and documents from the Executive branch is indispensable to what are -- at least in theory -- the core Congressional functions of lawmaking and oversight (p. 36):
The power of inquiry -- with process to enforce it -- is an essential and appropriate auxillary to the legislative function.Today's ruling should should elevate the pressure on Bolton, Miers, Rove and other Bush officials to respond to Congressional inquiries regarding what they know about the firing of these U.S. Attorneys, but as a practical matter, its impact will be quite limited. Miers, Bolton and friends can still (and certainly will) assert privilege with respect to specific conversations and documents (the court only resolved whether they have immunity from Congressional subpoenas generally, not whether specific documents and conversations are privileged). More importantly, this administration has repeatedly demonstrated complete indifference to legal process.
The court did note, in several places, that Congress likely has (again, at least in theory) the inherent authority to arrest and detain Executive Branch officials who refuse to comply with their Subpoenas.
Block by block and brick by brick, the ridiculous legal theories built by Bush, Rove, and Cheney are being dismantled.
