- The Washington Times - Friday, August 1, 2008

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.

Democrats are seeking to find out how closely the White House was involved with the dismissal of nine U.S. attorneys late in 2006. Democrats also want to know whether the White House had the prosecutors removed for political reasons, rather than simply because the administration was displeased with their performance or wanted to give other political prospects a chance in the high-profile jobs.

The U.S. attorneys flap led to the eventual resignation of several high-ranking White House appointees at the Justice Department, including Attorney General Alberto R. Gonzales.

Miss Miers and Mr. Bolten were subpoenaed by the House Judiciary Committee on June 13, 2007, but two weeks later, the administration obtained an opinion from then-Solicitor General Paul Clement stating the two officials and documents also requested were protected under executive privilege.

The White House continued to hold out to congressional Democratic leaders the offer of private interviews with Miss Miers, Mr. Bolten and Mr. Rove, without any transcript. Democrats rejected that offer and on Feb. 14, 2008, the full House voted 22332 to hold Miss Miers and Mr. Bolten in contempt of Congress.

But when Attorney General Michael B. Mukasey blocked the U.S. Attorney for the District of Columbia from taking the case to a grand jury, the Judiciary Committee filed a civil suit asking the District Court to enforce their subpoena.

Democrats issued triumphant statements.

“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,” said House Judiciary Committee Chairman John Conyers Jr., Michigan Democrat.

House Speaker Nancy Pelosi, California Democrat, called the ruling “a great victory for the American people, the rule of law and balance of power.”

Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said the ruling was “a rebuke of the White House’s arrogant cover-up, which is designed to shield from public view the inappropriate and illegal actions of this administration.”

Mr. Rove did not respond to an e-mail seeking comment.

Mr. Conyers said he would call Mr. Rove and Miss Miers to testify before his committee in September, raising the prospect of heavily partisan hearings with top former Bush advisers just weeks before the presidential election.

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