Judge Rules Bush Advisers Can't Ignore Subpoenas
WASHINGTON - President Bush's top advisers cannot ignore subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government.
"The executive's current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law," the judge, John D. Bates, ruled in United States District Court here.
Unless overturned on appeal, the ruling would require a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, to cooperate, at least partly, with the House Judiciary Committee, which has been investigating the dismissal of the federal prosecutors in 2006.
By implication, the ruling could also affect Karl Rove, former chief political adviser to Mr. Bush, who has also resisted appearing before Congressional inquiries that concern the Justice Department during the Bush administration.
While the ruling is the first in which a court has agreed to enforce a Congressional subpoena against the White House, Judge Bates called his 93-page decision "very limited" and emphasized that he would rather see the dispute resolved through political negotiations.
Mr. Bush's chief spokeswoman, Dana Perino, said that the White House was studying the decision and that "once we've had a chance to do that, we'll consider whether the decision should be appealed."
Before the ruling, several lawyers said it would almost surely be appealed, no matter which way it turned, because of its importance. Given that probability, it appears unlikely that Ms. Miers, Mr. Bolten or Mr. Rove will be testifying before Congress any time soon.
Ms. Perino, speaking to reporters on Air Force One on the way to Kennebunkport, Me., noted that Judge Bates had not ruled on the merits of any specific executive privilege claim and had in fact said that some considerations, like national security, might justify such a claim.
Ms. Miers and Mr. Bolten, citing legal advice from the White House, have refused for months to comply with Congressional subpoenas. The White House has repeatedly invoked executive privilege, the doctrine that allows the advice that a president gets from his close advisers to remain confidential.
In essence, the judge - whom Mr. Bush appointed in 2001 - held that whatever immunity from Congressional subpoenas that executive branch officials might enjoy, it was not "absolute." And in any event, he said, it is up to the courts, not the executive branch, to determine the scope of its immunity in particular cases.
The ruling was the latest setback for the Bush administration, which maintains that current and former White House aides are immune from Congressional subpoena. On Wednesday, the House Judiciary Committee voted along party lines to recommend that Mr. Rove be cited for contempt for ignoring a committee subpoena.
The House has already voted to hold Ms. Miers and Mr. Bolten in contempt for refusing to testify or to provide documents about the dismissals of the United States attorneys, which critics of the administration have suggested were driven by an improper mix of politics and decisions about who should or should not be prosecuted.
Last December, the Senate Judiciary Committee voted to hold Mr. Bolten and Mr. Rove in contempt for refusing to comply with subpoenas. The full Senate has yet to act.
The House Judiciary Committee, acting on behalf of the full House, brought the lawsuit that led to the ruling by Judge Bates. In rejecting the administration's request to dismiss the suit altogether, the judge said Ms. Miers could not simply ignore a subpoena to appear but must state her refusal in person. Moreover, he ruled, both she and Mr. Bolten must provide all nonprivileged documents related to the prosecutors' dismissals.
Democrats in Congress issued statements in which they claimed victory and said they looked forward to hearing from the appropriate White House officials.
"I have long pointed out that this administration's claims of executive privilege and immunity, which White House officials have used to justify refusing to even show up when served with Congressional subpoenas, are wrong," said Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the Senate Judiciary Committee.
Mr. Leahy's counterpart in the House, Representative John Conyers Jr., had a similar reaction. "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 Mr. Conyers, a Michigan Democrat who is chairman of the House Judiciary Committee.
Aitan Goelman, a former assistant United States attorney in New York City who also worked in the Justice Department's terrorism and violent crime section, said in an interview on Thursday that there was never a chance that Judge Bates would dismiss the suit outright. Deciding issues like those raised in the suit, he said, "is what courts do" and have done for two centuries.
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