Federal judge rejects executive privilege for Miers, Bolten

A federal judge on Thursday rejected a White House attempt to ignore congressional subpoenas on the grounds of executive privilege, 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 White House issued a swift notice of 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, appointed by 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 White House Chief of Staff Joshua 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.”

Judge Bates also found that “Mr. Bolten must produce more detailed documentation concerning privilege claims” but did not grant Democrats’ demands that the White House produce an exhaustive document log detailing every document provided and withheld.

Democrats are seeking to find out how closely the White House, including the president’s former top political adviser, Karl Rove, was involved in 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.

Ms. 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 that the two officials and the 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 Ms. Miers, Mr. Bolten and Mr. Rove, without any transcript.

Democrats rejected that offer, and on Feb. 14 the full House voted 223-32 to hold Ms. 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 its subpoena.

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