Judge says Bush aides must comply with subpoenas

The ruling sharply criticized the Bush administration's argument that senior administration officials are immune from congressional subpoena.

Published July 31, 2008 11:53PM (EDT)

In a strongly worded ruling released Thursday, a U.S. District Judge rejected the Bush administration's argument that its senior officials are immune from subpoenas issued by Congress.

The ruling stems from a lawsuit filed by the House of Representatives. The suit seeks to force former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten to comply with subpoenas issued to them during the course of the Congressional investigation into the administration's controversial firing of a number of U.S. Attorneys.

"The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law," U.S. District Judge John Bates wrote in his opinion. Bates went on to cite United States v. Nixon, a landmark Supreme Court ruling in which the court said, "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances."

Bates did say in his ruling, however, that Miers and Bolten could assert executive privilege regarding specific questions or documents; he only barred a blanket assertion of immunity.

It's not yet certain that Miers and Bolten will comply with the subpoenas against them. The White House can appeal Bates' ruling, and as Bates himself noted, it probably will. One reason to pursue an appeal is that it could drag on for quite some time, and meanwhile the game clock is running out quickly -- the subpoenas expire with the inauguration of a new House in January, though they could be re-issued.

And it's worth noting, by the way, some interesting parts of Bates' resume: he worked for Ken Starr as a deputy independent counsel and was appointed to the bench by President Bush.

We've made both Bates' opinion and the resulting order he issued available for download in PDF form. The opinion is here, and the order is here.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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