Judge Orders Miers to Testify
Claim of Executive Privilege Rejected

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.

Congressional Democrats hailed the ruling as a victory in their battles with the White House over documents, testimony and other issues.

House Speaker Nancy Pelosi (D-Calif.) said the ruling gave Congress a "road map" by which committees 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.

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said in a statement that "today's landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law."

Bates urged both sides to compromise because the clock is ticking. "The Court strongly encourages the parties to reach a negotiated solution to this dispute," Bates wrote.

The lawsuit by the committee was the first ever 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 U.S. attorneys 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 dismissals.

The House voted 232 to 32 to hold Miers and Bolten in contempt of Congress for refusing to comply with the subpoenas. With authorization from the House, the committee filed suit in March after the Justice Department declined to investigate the two on criminal allegations of contempt.

The Bush administration has won several court fights over executive privilege in recent years, but those came mostly in lawsuits filed by public interest groups seeking documents. "This is historic, because it is the first judicial opinion that squarely upholds a congressional subpoena against the White House," said Peter M. Shane, a professor of constitutional law at Ohio State University's Moritz College of Law and an authority on executive privilege.

Bates spent much of his opinion tearing down White House arguments that the House did not have standing to sue the White House. In 2002, Bates ruled that congressional investigators did not have such standing to sue Cheney for energy policy documents.

But yesterday, Bates wrote that the House committee had standing because the House had authorized the suit and the committee subpoenaed the records as part of an official investigation.

He also rejected a White House argument that the judiciary should not become involved in disputes between the political branches of government, writing that the courts play an important role in settling such matters.

The Bush administration had argued that Congress had other tools, including withholding funding, to force its hand. But Bates was particularly dismissive of an argument that the House had the authority to arrest presidential advisers for refusing to comply with subpoenas.

"One can easily imagine a stand-off between the Sergeant-at-arms and executive branch law enforcement officials concerning taking Mr. Bolten into custody and detaining him," Bates wrote.

Staff writer Paul Kane and staff researcher Madonna Lebling contributed to this report.

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