Executive privilege rejected in U.S. attorneys case

Times Staff Writer

A federal judge Thursday rebuked the Bush administration for making the “unprecedented” claim that senior White House officials were beyond the reach of congressional subpoena power, and ordered two top officials to cooperate with the politically charged probe of U.S. attorney firings.

The ruling by U.S. District Judge John D. Bates -- appointed to the federal bench by President Bush in 2001 -- is believed to be the first time in history that a court has come to the aid of Congress in attempting to enforce subpoenas against the executive branch.

Bates’ decision came in a lawsuit by the House leadership, which subpoenaed former White House Counsel Harriet E. Miers and Bush’s chief of staff, Joshua B. Bolten.


Democrats said Bates’ 93-page ruling vindicated their dogged efforts to check potential abuses under Bush, and tentatively set hearings for September. They said they expected White House officials to appear then to answer questions about the controversy over the fired prosecutors, which led to the resignation of Bush confidant and former Atty. Gen. Alberto R. Gonzales last year.

“The executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote. “That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

The ruling was the latest by a court to rein in broad claims of executive power by the Bush administration. The White House has also been stymied repeatedly in its actions in the war on terrorism, such as its treatment of “enemy combatants.”

“We disagree with the district court’s decision,” White House spokeswoman Dana Perino said Thursday.

Bates left unresolved whether administration officials would be justified in refusing to answer specific questions under the doctrine of executive privilege.

That question, and an anticipated White House appeal, means the controversy is likely to spill over into the next administration, where it could raise novel legal questions about whether ex-presidents have the power to assert executive privilege after they have left office. Since the subpoenas expire when the 110th Congress goes out of business in January, the incoming chamber would have to reissue them.

But the ruling provides some long-sought leverage for Democrats to put administration figures suspected of having a role in the prosecutor purge in the witness chair and under oath, including Bush political advisor Karl Rove. The House Judiciary Committee voted Wednesday to hold Rove in contempt of Congress for ignoring a subpoena relating to the dismissals.

“It certainly strengthens our hand,” House Speaker Nancy Pelosi said of the ruling. “This decision should send a clear signal to the Bush administration that it must cooperate fully with Congress” and that administration figures must testify.

Miers was the top lawyer in the White House when plans to replace some of the attorneys were being developed. Democrats had sought her testimony about the episode, and issued a separate subpoena to Bolten in order to obtain White House e-mails and other documents relating to the firings, which Democrats believe were politically motivated.

The White House took the position that both Miers and Bolten had blanket immunity, and argued in court papers that judges had no role in deciding the controversy. Miers never appeared before the committee, and Bolten produced no documents.

Bates said he found ample precedent for his court to decide the controversy. “Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process,” the judge observed.

The Supreme Court, he said, had reserved absolute immunity for “very narrow circumstances,” including matters of national security or foreign affairs.

Rep. John Conyers Jr. (D-Mich)., chairman of the House Judiciary Committee, signaled that hearings would commence after the five-week congressional summer recess. “We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September,” he said.

Bates said he hoped that lawyers for the two branches would settle the dispute and avoid further litigation. He scheduled a conference for Aug. 27 to discuss their progress.

“The practical significance of the opinion will depend chiefly on whether the investigations persist into the next Congress and on how the new administration responds,” said Peter M. Shane, a professor at Ohio State University’s law school.

He said there might be “interesting questions, yet presented, about the authority of an ex-president to make even qualified executive privilege claims on behalf of his former aides.” But he said that, in general, it is up to the incumbent president to decide, while in office, what is in the best interests of the executive branch as an institution.

Legal experts said they could recall no other case in which a federal court had sided with Congress to enforce a subpoena against executive branch officials. One reason is that Congress and the White House historically have resolved their differences before going to court.

The administration “could have saved themselves a lot of trouble if they had allowed these aides to go to the Hill to testify, to show they were willing to play ball,” said Mark J. Rozell, a professor at George Mason University’s law school. In those circumstances, they still could have reserved the right to make limited objections to some of the questions.

Rozell said the case was another example of how the administration had miscalculated the scope of its presidential powers. “They’ve overreached,” Rozell said, “and time after time, they have gotten their heads handed to them.”