- The Washington Times - Thursday, July 31, 2008

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.

Judge Bates found that Congress has the right to enforce its subpoena.

“There can be no question that Congress has a right — derived from its Article I legislative function — to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas. Several Supreme Court decisions have confirmed that fact,” he wrote.

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, 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 Leahy, Vermont Democrat, said the Bush administration’s executive privilege claims “are part of an arrogant White House cover-up, designed to shield from public view the inappropriate and illegal actions of this administration.”

“It is past time for senior administration officials to abide by the law and appear before Congress to offer testimony compelled by subpoena,” Mr. Leahy said.

All three top Democrats mentioned Mr. Rove’s name in their statements, even though Mr. Rove has not yet been found in contempt of Congress by the full House. Mr. Conyers’ committee held him in contempt on Wednesday.

But Mr. Conyers said he would call Mr. Rove and Ms. Miers to testify before his committee in September.

Judge Bates’ ruling then raises the prospect of heavily partisan hearings with top former Bush advisers barely more than a month before the presidential election.

Democrats could use the hearings to tarnish the White House just as large numbers of voters are tuning into the political process. Such hearings would play into the Democratic narrative that the presumptive Republican presidential nominee, Sen. John McCain, represents a third Bush term.

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