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.

Conyers wrote in a memo: "Despite extensive efforts to secure voluntary cooperation, and despite the issuance of a compulsory subpoena, Mr. Rove has refused to appear before and provide sworn testimony necessary for the Committee's continuing investigation into the apparent politicization of the Department of Justice, including the termination of U.S. Attorneys in 2006, allegations of selective prosecution, and related issues. Mr. Rove has refused even to appear before the Committee and assert whatever privileges that he believes may apply to his testimony, relying on excessively broad and legally insufficient claims of 'absolute immunity' -- never recognized by any court -- in declining to appear. The 'accommodations' or compromises that he has offered are almost entirely illusory, and would substantially compromise the Committee's ability to investigate these matters. Today's vote is thus necessary to preserve the prerogatives of this Committee and the House and to ensure that our process remains a meaningful investigative tool in the future."

Hiring Watch

Charlie Savage writes in the New York Times: "On May 17, 2005, the White House's political affairs office sent an e-mail message to agencies throughout the executive branch directing them to find jobs for 108 people on a list of 'priority candidates' who had 'loyally served the president.'

"'We simply want to place as many of our Bush loyalists as possible,' the White House emphasized in a follow-up message, according to a little-noticed passage of an internal Justice Department report released Monday about politicization in the department's hiring of civil-service prosecutors and immigration officials. . . .

"The report released on Monday by Justice Department investigators said that the context of the May 17, 2005, message from the White House about its priority-hire list 'made plain' that it was seeking politically appointed government jobs, for which it is legal to take politics into account. The report did not say who sent the message.

"But the message also urged administration officials to 'get creative' in finding the patronage positions -- and some political appointees carried out their mission with particular zeal.

"'We pledge 7 slots within 40 days and 40 nights. Let the games begin!' Jan Williams, then the White House's liaison to the Justice Department, responded in an e-mail message on May 19, 2005."

For a little context: "Andrew Rudalevige, an associate professor of political science at Dickinson College in Pennsylvania who studies how presidents administer power throughout the executive branch, said that while presidents of both parties over the last half-century had sought ways to impose greater political control over the federal bureaucracy, the Bush administration had gone further than any predecessor.

"'The Bush administration is unprecedented in how systematic the politicization is and how it extends both across the wider organization chart and deep down within the bureaucracy,' Professor Rudalevige said. 'They've been very consistent from Day 1 in learning the lessons of previous administrations and pushing those tactics to the limit.' . . .

"Paul C. Light, a professor of government at New York University, said the Bush administration had fostered an atmosphere that encouraged blurring the line between politics and policy, as when Mr. Bush gave Karl Rove, his top political advisor, a policy-making role in the White House. That atmosphere, Professor Light said, increased the chances of scandal by over-eager political appointees who ended up embarrassing the president.

"'Once you send this permissive agenda to agencies, you can't control it,' Mr. Light said. 'You want them to toe the line, but they may innovate.'"

Bush's Last Campaign

Bush this morning kicked off what could be his last major public-relations campaign -- this one to persuade the public that Iraq is finally headed in the right direction and that if things start to go badly again, it won't be his fault.

Ignoring today's major blown deadline -- the White House had pushed hard to get a multi-year security agreement with the Iraqi government nailed down by the end of the month -- Bush strode before the microphones to announce that the gains achieved by his controversial troop surge had reached "a degree of durability."

Bush is well aware that his legacy is wrapped up in Iraq. And an ugly legacy it may well turn out to be. Despite the current relative lull in violence, there are few signs that the deep schisms unleashed by the American invasion and occupation are in anything but temporary remission.

And in this PR initiative, the president is walking any number of tightropes. To make it seem like he's not dumping a disaster on his successor's lap, he needs to tell the public that things are going well. But at the same time, he needs to argue against a quick troop withdrawal. That, after all, is the position advocated by his political opponents. And furthermore, it might lead to an increase in violence that would expose the tenuous nature of things in Iraq.

Similarly, Bush's announcement last week that he supported a "general time horizon for meeting aspirational goals" regarding troop withdrawal was his way of dealing with the contradiction between his longstanding opposition to timetables and the Iraqi government's increasingly insistent demand for them.

Dan Eggen writes in The Washington Post: "Bush's hastily arranged statement today appeared to be aimed at highlighting what the administration views as significant movement toward a successful outcome in Iraq, while at the same time cautioning against the kind of firm withdrawal timeline championed by Democratic presidential candidate Sen. Barack Obama (D-Ill.) and some senior Iraqi officials."

Johanna Neuman blogs for the Los Angeles Times: "It wasn't as pointed as his infamous 'Mission Accomplished' speech of May 1, 2003. . . .

"But in a statement on the Iraq War this morning from the White House, President Bush said the 'surge' of U.S. troops into Iraq last year that so divided U.S. public opinion and still flavors the presidential race has ended in success. . . .

"The White House had hoped to announce a strategic framework agreement with Iraq today. The United Nations mandate that now allows the U.S. to be in Iraq expires Dec. 31, and the Maliki government has lately toughened its demands. So instead, Bush cited 'a month of encouraging news from Iraq. Violence is down to its lowest level since the spring of 2004, and we're now in our third consecutive month with reduced violence levels holding steady.'"

Alissa J. Rubin and Steven Lee Myers write in the New York Times: "President Bush said Thursday that increasing stability in Iraq would very likely allow the withdrawal of more American forces there. He praised the growing capability of Iraq's government and security forces and said that terrorists were on the brink of defeat. . . .

"Mr. Bush said the United States was 'also making progress' in negotiations on the long-term security agreement with the Iraqi government, which sets the terms for the presence of American troops in Iraq and is under intense scrutiny in both countries.

"But he made no mention of a final agreement, despite some indications that Iraq and the United States were close to a deal, and with an unofficial deadline for the agreement expiring on Thursday."

And one note: Although Bush declared the surge over, there are currently about 147,000 troops in Iraq, well above the 130,000 who were there before the surge began.

Intel Watch

Joby Warrick writes in The Washington Post: "President Bush ordered a major restructuring of the nation's intelligence-gathering community yesterday, approving new guidelines aimed at bolstering the authority of the Office of the Director of National Intelligence (DNI) as the leader of the nation's 16 spy agencies.

"The long-awaited overhaul of Executive Order 12333 gives the DNI greater control over spending and priority-setting, and also over contacts with foreign intelligence services -- a responsibility that has traditionally fallen to the CIA."

White House press secretary Dana Perino said in a statement this morning: "Implementation of the revised Executive Order will help create an Intelligence Community that is more unified, shares information more freely, effectively coordinates its actions, and collaborates more closely to provide policymakers the support needed to make difficult decisions affecting our national and homeland security. The revised Executive Order emphasizes the increased importance of protecting the United States from terrorism and the spread of weapons of mass destruction."

China Watch

Dan Eggen writes in The Washington Post: "President Bush sat down yesterday for interviews with foreign journalists, including two unusual media outlets: the People's Daily newspaper and the Central China Television network, both controlled by China's ruling Communist Party.

"The two state-run organizations were subject to the same rules as independent media companies, meaning they may edit the interviews as they wish, White House officials said yesterday. . . .

"The arrangement raises concerns among activist groups on both the right and the left that criticize Beijing's heavy media censorship. It came on the same day China announced that journalists will be restricted in the Internet sites they can access while covering the Olympics."

Ben Feller writes for the Associated Press: "As scrutiny grows over how China is treating its people and the visiting media, the White House defended Bush's approach to the Beijing games. The president plans to privately prod Chinese President Hu Jintao about human rights, and speak publicly about religious freedom after attending a church service in Beijing. . . .

"'What we are looking for in China is not gestures,' said Dennis Wilder, senior director for Asian Affairs at the White House National Security Council. 'We are looking for structural change. We are looking for long-term change.'

"But his time in China is built around attending sporting events, so much that his agenda is being kept largely open so he can pick which events to watch."

Here's more from Wilder's briefing: "I think the President feels very strongly that what he is doing in Beijing is, first and foremost, supporting the American Olympic team. American athletes have worked long and hard to get to these Games. He's a President who loves sports. He's a President who believes in competition and the Olympic spirit. And so, number one on his agenda is really to go to Beijing to support those athletes."

The New York Times editorial board writes: "Mr. Bush's approach is still too deferential given China's reprehensible and defiant behavior."

Israel Watch

Linda Gradstein writes in The Washington Post: "Israeli Prime Minister Ehud Olmert, facing a widening corruption investigation, announced Wednesday that he will not compete in his party's leadership primary in September. The move will effectively end his tenure as premier and is likely to complicate efforts to reach an Israeli-Palestinian peace deal before President Bush leaves office."

Isabel Kershner writes in the New York Times that the move "raises questions about the political legacies of both President Bush and Mr. Olmert, who have hoped to burnish their reputations by achieving breakthroughs in Middle East peace talks before leaving office."

Iran Watch

Juan Cole writes for Salon: "Pundits and diplomats nearly got whiplash from the double take they did when George W. Bush sent the No. 3 man in the State Department to sit at a table on July 19 across from an Iranian negotiator, without any preconditions. When Bush had addressed the Israeli Knesset in May, he made headlines by denouncing any negotiation with 'terrorists and radicals' as 'the false comfort of appeasement.' What drove W. to undermine John McCain by suddenly adopting Barack Obama's foreign policy prescription on Iran?"

Cole concludes that the reason for the reversal was "reality -- not just a recognition of the limits of the U.S. military, but a taste of $5-per-gallon gas. Bush and Cheney, both oilmen, invaded one oil-rich country and said its reconstruction would be paid for by a flood of cheap oil. Now, ironically, one of the main reasons they have had to scale back their ambitions for a second oil-rich country, Iran, is the crushing effect of expensive oil on the U.S. and world economy."

Fly Away

Richard Wolf writes in USA Today: "Gas costs $4, credit is tight, housing is in a slump. What's a president to do?

"For President Bush, the answer is to focus much of his attention on foreign policy -- an area, analysts say, in which he has stashed his predilection for saber-rattling and turned to quiet diplomacy. . . .

"Struggling at home with a faltering economy and deadlocked with Congress over energy policy, Bush is spending more time and enjoying more success overseas. When he sets foot in South Korea on Tuesday, he'll become the most-traveled U.S. president, surpassing Bill Clinton's record of 133 foreign visits, White House data show."

Bill Signings

Dan Eggen writes in The Washington Post: "President Bush yesterday signed two of the most significant measures of his presidency -- one the most sweeping housing legislation in decades and the other an extension of his massive global program to combat AIDS and HIV infections in the developing world."

Katharine Euphrat writes for the Associated Press about the health measure: "Bush said the program, launched by him in 2003, 'is the largest commitment by any nation to combat a single disease in human history.'. . .

"Bush diverted from broader remarks to issue a personal appeal to those stricken with AIDS.

"'Don't let shame keep you from getting tested or treated,' he said. 'Your life is treasured by the people who love you. . . . It matters to the people of the United States.'"

The Huntress

William Grimes writes in the New York Times: "Anne L. Armstrong, an adviser to Presidents Richard M. Nixon and Gerald R. Ford and the first woman to serve as the United States ambassador to Britain, died Wednesday in Houston. She was 80 and lived in Armstrong, Tex."

But White House Watch readers may recall Armstrong best for this incident: "It was on the Armstrong ranch that Vice President Dick Cheney, while quail hunting in February 2006, let off an errant blast from his shotgun that hit Harry Whittington, a Texas lawyer, in the face and upper body."

For a trip down memory lane, see my Feb. 13, Feb. 16 and Feb. 21, 2006, columns.

War Crimes Watch

Rosa Brooks writes in her Los Angeles Times opinion column that many Americans who read of indicted war criminal Radovan Karadzic's arrest may be wondering, "Yes, great -- and when will George W. Bush and Dick Cheney face trial for war crimes?"

She concludes that "neither Democrats nor Republicans have the stomach for criminal proceedings against high-ranking current or former officials who still retain substantial public support. Meanwhile, no international tribunal is ever likely to have jurisdiction over the U.S. participants involved in the abuses.

"But that doesn't mean we should give up on accountability. John McCain and Barack Obama should be urged to establish a high-level, nonpartisan 'truth commission' with robust subpoena powers early in 2009. That commission should investigate, hold hearings and issue a public report on responsibility for torture, war crimes and other abuses committed during the Bush administration.

"Such a panel wouldn't satisfy those who'd like to see Bush and Cheney in prison garb, but it would be a major step toward undoing the damage the administration did to our reputation as a nation committed to human rights. And as more incriminating details come out -- and they will -- some Bush-Cheney fan club members might even turn in their membership cards."

Goodnight Bush

Newsweek's Brian No interviews the authors of "Goodnight Bush," an unauthorized parody of Margaret Wise Brown's classic children's story "Goodnight Moon," "which has become an unexpected best seller since its release in May."

Says coauthor Erich Origen: "Well we were just inspired by what a great job Bush was doing, and we wanted to capture his legacy and the glory of it. [Chuckle.] No, we felt that we were responding to a need to have a truth-and-reconciliation moment. The cultural response to Bush has either been to make fun of the absurdity or soberly assess the tragedy. Of course, it's both absurd and tragic, and we felt we needed something that captured both of those things."

Cartoon Watch

Ben Sargent and J.D. Crowe on the Bush deficit; Mike Keefe, Pat Bagley, Jim Morin, Steven Lait and Rex Babin on Justice Department hiring.

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