Judge Urged to Order Associates Of President to Honor Subpoena

The House Judiciary Committee wants White House Chief of Staff Joshua Bolten to hand over documents about the administration's 2006 dismissals of nine U.S. attorneys.
The House Judiciary Committee wants White House Chief of Staff Joshua Bolten to hand over documents about the administration's 2006 dismissals of nine U.S. attorneys. (By Alex Wong -- Getty Images)
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By Del Quentin Wilber
Washington Post Staff Writer
Tuesday, June 24, 2008

Lawyers for Congress tried yesterday to persuade a federal judge to take the unprecedented step of ordering top White House aides to comply with a House committee's subpoena for information about the controversial firings of U.S. attorneys.

Attorneys for the House Judiciary Committee brought their long-running battle over the Bush administration's assertion of executive privilege to the three-hour court hearing, telling U.S. District Judge John D. Bates that he should force former White House counsel Harriet E. Miers to testify and White House Chief of Staff Joshua B. Bolten to turn over documents.

While expressing skepticism at White House claims that the aides enjoy "absolute immunity" from compliance with the subpoena, Bates peppered House lawyers with questions about whether he even has the authority to intervene in the dispute. Judges typically have allowed the president and Congress to work out such differences themselves.

"Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance" of power, Bates said.

The lawsuit is the first filed by either chamber of Congress seeking to force the executive branch to comply with a subpoena, according to both sides.

The House committee wants Miers to testify about the dismissals of nine top federal prosecutors in late 2006, which many Democratic lawmakers contend were fueled by political considerations. It also is seeking documents from Bolten.

The House voted 232 to 32 to hold Miers and Bolton in contempt of Congress for refusing to comply with the subpoenas. The committee filed suit in March to force the pair to comply after the Justice Department declined to investigate them on criminal allegations of contempt of Congress.

House counsel Irvin B. Nathan argued yesterday that Bates should compel Miers, who left the White House in early 2007, to testify and allow her to invoke executive privilege only on a question-by-question basis. He urged the judge to order Bolten to provide a log of White House documents and explain why each was being withheld.

"Congress needs the facts" to consider legislation or other measures in the wake of the U.S. attorney furor, Nathan argued.

If Bates refuses to force Miers to appear, the judge "will be sending the message that subpoenas don't have to be complied with," Nathan added.

A Justice Department lawyer representing the White House urged Bates to toss out the lawsuit, arguing that the aides have "absolute immunity" from providing such testimony or documents under the legal doctrine of executive privilege.

The lawyer, Carl Nichols, also said that the courts do not have jurisdiction to settle the dispute. Instead, the two sides should fashion a compromise, said Nichols, a deputy associate attorney general. Nichols said Congress could withhold funds for the Justice Department or delay presidential appointments to achieve its goals.

But Nathan said that negotiations have not been successful, adding that the White House has offered only certain documents and off-the-record interviews with Miers and other aides. That lack of cooperation forced the committee to file suit, Nathan said.

Bates, expressing reservations about wading into the constitutional confrontation, said the House could take other actions to compel the testimony. For example, the judge said, the House could order Miers's arrest and detention in a cell in the Capitol until she agreed to testify. Such actions were fairly common in the 19th century.

But Nathan said arresting Miers would lead to further court action, and that seeking judicial help in a civil lawsuit was a more orderly way to proceed.

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