Judge Orders Miers to Testify

Harriet Miers, shown as White House counsel in 2005, was ordered to testify about the firings of nine U.S. attorneys despite a claim of executive privilege.
Harriet Miers, shown as White House counsel in 2005, was ordered to testify about the firings of nine U.S. attorneys despite a claim of executive privilege. (By Charles Dharapak -- Associated Press)

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By Del Quentin Wilber
Washington Post Staff Writer
Friday, August 1, 2008

A federal judge yesterday ordered a former White House counsel to testify before a House committee, rejecting the Bush administration's broad claims of executive privilege in its fight with Congress over the role politics played in the firing of nine federal prosecutors.

Wading into a landmark legal battle between Congress and President Bush, U.S. District Judge John D. Bates sided firmly with lawmakers. Bates ordered former White House counsel Harriet E. Miers to appear before the House Judiciary Committee, which had filed suit after being rebuffed by the administration, to answer questions about the dismissals.

He also ruled that White House chief of staff Joshua B. Bolten must turn over documents to the committee or explain in detail why records are being withheld.

The Bush administration has increasingly invoked executive privilege in its battles with Congress over documents and testimony related to issues as diverse as greenhouse gas emissions and FBI interviews of Vice President Cheney about the controversial leak of a CIA officer's identity.

Bates, who was appointed by Bush, seemed particularly concerned with White House assertions that Miers and other close presidential advisers had immunity from ever appearing before congressional committees.

The administration also argued that it had the right to decide which documents to turn over to Congress under executive privilege, a doctrine designed to protect the advice given to the president by his closest advisers. Bates rejected that contention, too.

"The Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process," Bates wrote in a 93-page opinion for the U.S. District Court for the District of Columbia.

Although Miers must appear before Congress to testify, Bates wrote, she will be permitted under his ruling to invoke executive privilege when asked specific questions.

If she does assert the privilege, Congress may have to return to court to challenge the validity of those claims.

The next president may or may not support the claims, and the next Congress will have to decide whether to continue the court fight, legal scholars noted.

The White House, which was represented by Justice Department lawyers, said it disagrees with the decision and is deciding what to do next.

"We are reviewing it, and once we have had a chance to do that, we'll consider whether the decision should be appealed," said White House press secretary Dana Perino.

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