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Judge says Bush aides must answer subpoenas

Rejects claim of immunity in probe of U.S. attorney firings

By Jon Ward THE WASHINGTON TIMES | Friday, August 1, 2008

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A federal judge Thursday rejected a White House attempt to ignore congressional subpoenas on executive privilege grounds, ruling that the president's former top lawyer must testify on the 2006 removal of nine federal prosecutors.

”The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” wrote D.C. District Court Judge John D. Bates.

The court's ruling also could compel former top White House adviser Karl Rove to appear before Congress. The White House swiftly signaled a likely appeal.

“We disagree with the district court's decision, 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.

Judge Bates, a 2001 appointee of President Bush, wrote in his 93-page ruling that he had issued a “strikingly minimal” decision, declining to rule for or against any specific assertions by the White House of executive privilege.

But by dismissing the Bush administration's claim of “total immunity” for former White House Counsel Harriet Miers and current Chief of Staff Joshua B. Bolten, Judge Bates said he was stopping the president from overstepping his power.

“Presidential autonomy, such as it is, cannot mean that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress's historical oversight function,” Judge Bates wrote.

The White House claim of “absolute immunity,” the judge ruled, “rests upon a discredited notion of executive power and privilege.”

“It is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege,” he wrote. “Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one, yet that is what the Executive seeks through its assertion of Ms. Miers's absolute immunity from compulsory process.”

The judge said that executive privilege is a legitimate shield if the White House is trying to protect national security information, but that the U.S. attorneys case did not qualify as a national security issue.