Judge Rules Bush Aides Must Obey Congressional Subpoenas

By Del Quentin Wilber
Washington Post Staff Writer
Thursday, July 31, 2008; 12:11 PM

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."

Bates also ordered that Bolten and Miers to produce all "non-privileged documents requested by" the committee in subpoenas.

Bates's decision will likely not end the squabble. The Justice Department, which represents the White House, is expected to appeal. Officials with the committee and the Justice Department could not be reached for comment.

But House Speaker Nancy Pelosi (D-Calif.) said the ruling gave Congress a "road map" by which committees ultimately could gain testimony from former West Wing officials, including ex-deputy chief of staff Karl Rove.

"It was a victory for all who believe in checks and balances...It certainly strengthens our hand," Pelosi told reporters. The House Judiciary Committee voted Wednesday to hold Rove in contempt of Congress for his refusal to testify earlier this year. Last year, Rove refused to testify before the Senate Judiciary Committee about his alleged role in the prosecutor firings.

In his opinion, Bates urged both sides to negotiate a compromise, writing that he did not want to discourage "the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches."

The ruling followed a three-hour hearing on June 23 in which White House lawyers and those for the House Judiciary Committee dueled over whether Miers and Bolten could invoke executive privilege in response to the congressional subpoenas.

The lawsuit by the committee was 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 that may shed light on the firings.

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.

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