Judge rejects ‘absolute immunity’ claim, says White House aides can be subpoenaed
White House attorneys are quite capable of coming up with creative legal arguments. The problem, though, is that judges aren’t willing to reward their creativity.
President Bush’s top advisers are not immune from congressional subpoenas, a federal judge ruled Thursday in an unprecedented dispute between the two political branches.
House Democrats called the ruling a ringing endorsement of the principle that nobody is above the law.
In his ruling, U.S. District Judge John Bates said there’s no legal basis for Bush’s argument and that his former legal counsel, Harriet 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 testimony from White House chief of staff Joshua Bolten.
“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 non-privileged documents related to the firings.
Because I know this is the first question on the minds of many political observers, I should note that Bates was appointed to the federal bench by none other than George W. Bush. Indeed, Bates has, in general, been a Bush administration ally (he threw out Valerie Plame’s suit against Karl Rove, for example).
But not today. Bates wrote that “the Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”
House Speaker Nancy Pelosi called it “very good news for anyone who believes in the Constitution of the United States and the separation of powers, and checks and balances.”
So, what happens now?
The first thing to watch for is how quickly it takes Congress to follow up.
Democrats swiftly pledged to call Miers before the Judiciary Committee as soon as September to testify about whether the White House played any role in the firings of nine U.S. attorney’s last year…. [Judiciary Committee Chairman John Conyers] signaled election-season hearings will be held 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.”
The second thing to watch for is the appeal. The AP noted that Conyers “said he hoped that Miers and Bolten do not appeal the ruling.” Fat chance. The White House will almost certainly appeal, and hope to run out the clock before Bush’s presidency ends. Depending on the speed and efficiency of the appeals bench, this might work.
Third, this is not at all good news for Rove, who continues to claim the same “absolute immunity” that Bates rejected yesterday.
And then, there’s the big picture. Today’s ruling was an important one for the power of Congress and the scope of congressional oversight authority. Marty Lederman called it a “landmark decision,” and an “extraordinarily thorough, scholarly and thoughtful opinion.”
The right will no doubt dismiss it as judicial activism because, well, that’s what they always say when they lose.
Dale
says:Congress never should have sent this issue to a judge even though the ruling is good. They should have stuck Miers and Rove in jail and THEN worked out the legalities. Contempt of Congress is illegal.
Goldilocks
says:Best news today.
SteveT
says:House Speaker Nancy Pelosi called it “very good news for anyone who believes in the Constitution of the United States and the separation of powers, and checks and balances.”
In other words, it’s good news for people other than the Speaker. It’s good news progressives who have become disgusted with the Democratic Congressional leadership’s feckless, gutless, dishonorable capitulation to the Bush Crime Cabal.
SickofBushMcCainLiebermann
says:no more Fun With Dick and George….
joey
says:“…House Speaker Nancy Pelosi called it “very good news for anyone who believes in the Constitution of the United States and the separation of powers, and checks and balances.”…”
Well, that leaves Pelosi out. “What crimes…I see nothing…I see nothing…but a clean uncluttered table”
JoeW
says:This will undoubtedly get kicked down the road to the nest admin. The judge did not say that there was no executive privilege, merely that there’s no blanket privilege. To me, this means that every specific claim will get litigated to it’s bitter end. And it’s maybe not a bad thing. I’d rather see this get the full treatment once we have an honest DOJ, than the predictable treatment it would get from the one we have now.
Steve
says:Bush’s “unitary executive” concept is beginning to look like a “hillbilly unicycle”—the wheel’s gone, and it’s up on a concrete block in the front yard….
Tom Cleaver
says:One can only hope that now that the revolutionary Bush regime is over, that there will be corrections made to the system. Yes, it’s a case of the horse having kicked down the barn, but once the barn is rebuilt it needs horse-proof locks.
Kevin
says:Eh, this doesn’t really matter. After the appeals, whenever they do actually testify, expect a lot of “I can’t answer that because the president” and the old Gonzalez special “I don’t recall”.
In the end, they’ll testify, but nothing will be said. Just another circus of stupidity.
hark
says:Don’t sweat it, Dems. No doubt Republicans will appeal. You won’t have to pretend to do anything.
In the worst case scenario, just use your Pelosi sweep it off the table powers. That’ll take care of it.
chrenson
says:“Absolute Immunity” sounds like something the neighborhood asshole kid always claims during a game of tag in order to keep from being “it.” I cannot wait until this particular game of tag is over. My only hope is that a few of our older brothers and sisters will take Georgie out behind the Collins house and beat the shit out of him.
NonyNony
says:Heh. It’s kind of funny (in a Heath Ledger playing the Joker kind of way). We all look at this and think about a possibility that justice might get done, or that at the very least some truth might come out so that there’s a chance this won’t happen again.
I think the folks in the House leadership are just looking at this as one more thing to hammer the Republicans with.
They’ll get the chance to bring this all up again in September. And they’ll get to watch the parties involved continue to stonewall. It’ll make the news again – perhaps they’ll push something so that it shows up in the news cycle again in October. Just as a reminder right before the elections that Republicans are corrupt and shouldn’t be trusted.
In the end we all know that Bush is going to pardon the lot of them. A blanket pardon that resolves them from any act they performed in their capacity as representatives of the Executive Branch for the last eight years. And the next Congress and the next President are going to want everyone to “put that all behind us” because “it’s in the past” and “it’s time to mend fences” and “work together” to “confront the challenges ahead of us”. (I can almost hear the Obama/McCain speech in my head as we speak).
I’d really like to be wrong on this one. I’d really like for Obama to have seen just how poorly this all worked out for Clinton when he came to office under eerily similar conditions in 1992. I’d really like Obama to come to office and say ‘screw that – Congress can keep up their investigations and we’re going to work with them to root out this festering corruption and make sure we can say “Never Again”‘. I guess I’m just too cynical to believe it could possibly happen.
Follow the bouncing ball
says:Hey JoeW I agree with you. After how fast W. pardoned Scooter maybe next year is better!!! you know Dubba will pardon you before you’ve been convicted.
Josh Bolten
says:I believe Executive Privledge immunizes me from the judge’s decision.
Chris
says:I recognize the positive side of this ruling but I can’t help but feel that it’s not *that* big of a deal. Basically the ruling said that they can’t just invoke executive privilege, they have to show up, sit down in front of congress and then they get to invoke it. Am I right about that? If that’s the case, we get to enjoy the media spectacle of them saying “Exec priv” however many times but are we really going to learn anything? It seems that whether they show up or not, the results will be similar…
RepublicanPointOfView
says:Thank God we have Nancy on our side – so we know that it is all hot air and bluster and nothing will be followed thru on…
SadOldVet
says:Josh Bolten said:
“I believe Executive Privledge immunizes me from the judge’s decision.”
Only if you are a republican. Dimocrats must follow the Constitution and the law – they just are not allowed by their ‘leadership’ to enforce it on rethugs.
Racer X
says:So even the ringer Bush put on the bench says that they haven’t got a legal leg to stand on. In other words, Pelosi and Reid are candy-ass morons, because they’ve been letting this charade go on, and on, and on. Even Bush’s own toadies admit his attempts to cover up his crimes are legally bogus, but the Speaker still keeps her lovely table cleared of any yucky impeachment stuff.
If I had one punch to throw, and they were all there to punch, she would get it. It would be worth the jail time.
Diogenes
says:I agree with Nony. The House congressional “leadership” have shown that they really don’t care about justice. This is government being perverted for the sake of politics…again.
NonyNony
says:In other words, Pelosi and Reid are candy-ass morons, because they’ve been letting this charade go on, and on, and on.
Morons? Or do they benefit by maintaining the charade? Or would they feel pain if they let the charade drop?
I don’t think either of them are morons. I think Pelosi is an ineffective leader who cannot control the rogue elements in her majority and is little more than a figurehead right now (though I’ll bet she’s pulling in more PAC money as Speaker than she did before, and her control over her majority will start to grow as she has more candy to hand out to the addicts in the House).
I think Reid actually wants to pass a lot of the agenda items that the Bush administration has – with some tweaks – and is using the Republicans as cover so that he doesn’t have to take the fall. If he had an administration that would work with him instead of locking horns with him (one that would give a little “pro quo” for his “quid”) it would be more obvious because he wouldn’t need the cover quite as much then.
I don’t tend to attribute to stupidity what can be more easily explained by intent. They’re doing this stuff on purpose, this isn’t accidental blundering. This is where the call for “better Democrats” and not just “more Democrats” is important. (And why I wish someone had seriously challenged Steny Hoyer in his primary this year – he’s where the real drag in the House is coming from right now, not Pelosi, no matter how much folks want to get mad at her.)
Winkandanod
says:Bush will fall back on the newly contrived John Yoo legal opinion that former presidents retain their pardon power indefinitely.
Always hopeful
says:Just drag it out through January 20, 2009 so Bush can’t pardon them first. Then they really have to go to jail.
If there is even an ounce of discovery that Valerie Plame can hang her hat on, she can file another suit. I’m dying to see Rove go down. He’s evil.
Bruno
says:Nothing wrong with it ‘dragging on’ Once it starts showing up in September and October. the Republicans will start crying ‘election politics’ At which time the ‘smart’ Democrats need to state that it’s coming up now because of the Republican stalling techniques and obstructionism.
“Just the facts, Ma’am!”
lenko
says:chrenson @ 11 said:
“Absolute Immunity” sounds like something the neighborhood asshole kid always claims during a game of tag in order to keep from being “it.” I cannot wait until this particular game of tag is over. My only hope is that a few of our older brothers and sisters will take Georgie out behind the Collins house and beat the shit out of him.
Oh yeah…. I believe you can depend on it. He won’t be safe ANYWHERE. Too many people who need to settle the score.