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The New York Times

Before Judge, Spirited Clash on Subpoenas for Bush Aides

Neil A. Lewis

WASHINGTON - Lawyers for the Bush administration and Congress clashed on Monday before a federal judge over whether White House officials could refuse to comply with subpoenas from the House Judiciary Committee.

The judge, who represents the third branch of government, noted the judiciary's burden in being asked to referee the constitutional battle. Judge John D. Bates of Federal District Court, who participated in spirited arguments with both sides for nearly three hours, summed up the court's predicament, saying, "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance."

The case, with its fundamental issues of the separation of powers and the extent to which the executive branch may withhold information, involves efforts by Democrats on the committee to investigate whether the White House exercised improper political influence in the firing of several federal prosecutors. The House has voted to hold in contempt Harriet E. Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, who have refused to provide documents and testimony about the dismissals of the United States attorneys.

If Judge Bates sides with the House, it would be the first time a court has agreed to enforce a Congressional subpoena against the White House. Whatever the ruling, many lawyers presume the issue has such significance that it will ultimately be decided by a higher court.

Irvin B. Nathan, representing the House, said the administration had no basis to assert, as it had, that its officials have absolute immunity from Congressional subpoena.

Mr. Nathan also asserted that the White House had said publicly that President Bush had nothing to do with the dismissals of the prosecutors, thereby eliminating the argument that Ms. Miers and Mr. Bolten would be discussing their advice to the president, a foundation for executive privilege.

Carl Nichols, a senior Justice Department official, told Judge Bates that it would be unprecedented for him to order executive branch officials to comply with the subpoena. If the judge did so, he said, "Congress would be free to sue the executive branch any time it wants."

 © 2008 The New York Times

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