July 31, 2008, Washington, DC – A federal judge on Thursday rejected President Bush’s contention that senior White House advisers are immune from subpoenas, siding with Congress’ power to investigate the executive branch and handing a victory to Democrats probing the dismissal of nine federal prosecutors.
The unprecedented ruling undercut three presidential confidants who have defied congressional subpoenas for information that Bush says is protected by executive privilege. Democrats swiftly announced they would schedule hearings in September, at the height of election season.
House Speaker Nancy Pelosi said the House could soon vote on a contempt citation against one of the three officials, Karl Rove, formerly Bush’s top adviser.
“It certainly strengthens our hand,” she said of the ruling. “This decision should send a clear signal to the Bush administration that it must cooperate fully with Congress and that former administration officials Harriet Miers and Karl Rove must testify before Congress.”
That wasn’t clear at all to the White House or Rove’s attorney. Bush administration lawyers were reviewing the ruling and were widely expected to appeal. They also could seek a stay that would suspend any further congressional proceedings.
“We disagree with the district court’s decision,” White House spokeswoman Dana Perino said.
With only a few months left in Bush’s presidency, there appeared to be no sense of urgency to make the next move.
“I have not yet talked with anyone at the White House … and don’t expect that this matter will be finally resolved in the very near future,” Rove attorney Robert Luskin said in an e-mail.
The case marked the first time Congress ever has gone to court to demand the testimony of White House aides.
In his ruling, U.S. District Judge John Bates said there’s no legal basis for Bush’s argument that his former legal counsel, Miers, must appear before Congress. If she wants to refuse to testify, he said, she must do so in person. The committee also has sought to force White House chief of staff Joshua Bolten to release documents on any role the White House may have played in the prosecutor firings.
“Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena,” Bates wrote. He said that both Bolten and Miers must give Congress all nonprivileged documents related to the firings.
Bates, who was appointed to the bench by Bush, issued a 93-page opinion that strongly rejected the administration’s legal arguments. He said the executive branch could not point to a single case in which courts held that White House aides were immune from congressional subpoenas.
“That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law,” Bates wrote.
The ruling is a blow to the Bush administration’s efforts to bolster the power of the executive branch at the expense of the legislative branch. Disputes over congressional subpoenas are normally resolved through political compromise, not through the court system. Had Bush prevailed, it would have dramatically weakened congressional authority in oversight investigations.
That remains a risk, one Republican said.
“Unfortunately, today’s victory may be short-lived,” said Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee. “If the administration appeals the ruling, our congressional prerogatives will once again be put at risk.”
Congressional Democrats called the ruling a ringing endorsement of the principle that nobody is above the law. Shortly after the ruling, the chairmen of the House and Senate Judiciary Committees quickly demanded that the White House officials subpoenaed appear before their panels.
Rep. John Conyers, D-Mich., chairman of the House panel, signaled that hearings would commence in September on the controversy that scandalized the Justice Department and led to the resignation of a longtime presidential confidant, Attorney General Alberto Gonzales.
“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,” Conyers said in a statement. “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.”
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said, “I look forward to working with the White House and the Justice Department to coordinate the long overdue appearances.”
Between now and September, Congress will recess for five weeks of summer vacation. Bates scheduled a conference between the litigants on Aug. 27 to take stock of whether negotiations had moved forward, as he urged in his ruling. Congress then returns to a brief, three-week session before scattering to the campaign trail. All 435 House seats and a third of the Senate are up for grabs, as well as the presidency.
Republicans said there was little reason to rush to an accommodation, noting that subpoenas will expire at the end of the 110th Congress in January.
“I’m sure it will be appealed and it will go on into next year, and it will become a moot issue,” said House GOP Leader John Boehner of Ohio.
Several Democratic officials said they expected the subpoenas to be reissued in January if their party retains control of Congress in the November elections