Judge Rejects 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 the

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.


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“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.

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