The White House's Immune Deficiency

By Dan Froomkin
Special to
Thursday, July 31, 2008; 1:23 PM

A federal judge today flatly rejected one of the White House's most audacious legal claims: that presidential advisers have absolute immunity from congressional oversight.

The House Judiciary Committee had asked the U.S. District Court to enforce its contempt of Congress ruling against Harriet E. Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, over their refusal to cooperate with an investigation into the politicization of the Justice Department, including the mass firings of U.S. attorneys in 2006.

In his opinion this morning, Judge John D. Bates noted that "[t]he heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process" -- which was the White House's contention.

Bates called that assertion unprecedented and unsupported: "The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law."

But that doesn't mean that Congress now will get all the White House testimony and documents it wants. The White House is sure to appeal the ruling and try to run out the clock. Furthermore, Bates left open the possibility that the aides could assert claims of executive privilege "in response to specific questions as appropriate."

The judge qualified his opinion: "It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive's several reasons why the Court should not entertain the Committee's lawsuit, but on the merits of the Committee's present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed -- and the Court expresses no view on such claims. Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches."

Nevertheless, on argument after argument, Bates sided with Congress. For instance, he wrote: "[T]his inquiry does not involve the sensitive topics of national security or foreign affairs. Congress, moreover, is acting pursuant to a legitimate use of its investigative authority. Notwithstanding its best efforts, the Committee has been unable to discover the underlying causes of the forced terminations of the U.S. Attorneys. The Committee has legitimate reasons to believe that Ms. Miers's testimony can remedy that deficiency. There is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to testify. Importantly, moreover, Ms. Miers remains able to assert privilege in response to any specific question or subject matter."

Similarly, Bates roundly rejected the White House's argument that he shouldn't get involved: "The Executive presents a litany of reasons why the Court should decline to decide this case. But the crux of the Executive's position is that the federal judiciary should not enter into this dispute between the political branches. . . .

"There is some force to the Executive's position, but the Court is not persuaded. To begin with, whatever way this Court decides the issues before it may impact the balance between the political branches in this and future settings, as the Court has already noted. ([Quoting himself in oral arguments:] 'This is one of the difficulties I have, because both sides have that same point, whatever I do, whether I rule for the executive branch . . . or rule for the legislative branch, that somehow I am going to disrupt the balance that has existed.'). Hence, a decision to foreclose access to the courts, as the Executive urges, would tilt the balance in favor of the Executive here, the very mischief the Executive purports to fear. Moreover, the Executive is mistaken in the contention that judicial intervention in this arena at the request of Congress would be unprecedented in the nation's history. The 1974 decision by the Supreme Court in United States v. Nixon adjusted this balance by clarifying that the judiciary must be available to resolve executive privilege claims."

House Judiciary Committee Chairman John Conyers, Jr. responded with a statement: "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. . . . We look forward to the White House complying with this ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims. 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."

For background, see my June 24 column, Battered Congress Syndrome, about the oral arguments before Judge Bates, my March 11 column, Playing Constitutional Chicken, and my Aug. 2, 2007, column, Karl Rove's Immunity.

Rove Watch

By coincidence, the House Judiciary Committee voted yesterday to cite Karl Rove for contempt of Congress, for his refusal to show up for a separate hearing on Justice Department politicization.

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