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Judge Rebuffs White House Immunity

by Jason Leopold

Facing a new reversal in federal court, the Bush administration is finding its options narrowed in its effort to stop congressional testimony from former White House counsel Harriet Miers and chief of staff Joshua Bolten regarding the firing of nine U.S. attorneys in 2006.

The administration had asserted a blanket claim of executive privilege in the face of congressional subpoenas, but U.S. District Judge John Bates rejected that claim as unprecedented and, on Tuesday, denied the Justice Department’s request for a stay pending an appeal.

Under the ruling, Miers and Bolten now must appear before the House Judiciary Committee to testify about the White House role in the firings and produce documents sought by the committee.

While denying the administration’s request for a stay, Judge Bates suggested that the parties might still be able to negotiate a resolution of the battle over the executive privilege claim.

“This decision should not ...  foreclose the parties' continuing attempts to reach a negotiated solution,” Bates said. “Both sides indicated that discussions regarding an accommodation have resumed.”

However, it appears those negotiations may have been a White House ruse to further delay the testimony until it could obtain a court stay that would let George W. Bush leave office before the appeal could be completed.

Even Judge Bates suspected that the negotiations were unlikely to resolve the matter.

“Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch [the Judiciary] would not be necessary,” wrote Bates, a Bush appointee.

House Judiciary Committee Chairman John Conyers lauded Bates’s ruling and said he intends to call Miers to testify when Congress returns from its summer break in September.

Bates’s "ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization [during] this Congress,” Conyers said.

The House Judiciary Committee subpoenaed Miers and Bolten last year regarding allegations that the White House had engaged in improper politicization of U.S. Attorneys by firing prosecutors who were not viewed as sufficiently loyal to President Bush.

In asserting executive privilege, Bush claimed Bolten and Miers were immune to congressional subpoenas as were their related documents. The House then voted to hold Bolten and Miers in contempt of Congress.

In the July 31 order rejecting Bush’s executive privilege claim, Bates said the White House’s legal argument of executive privilege was "entirely unsupported by existing case law."

Bates said Miers could invoke executive privilege on a question-by-question basis. But he said Miers must comply with the congressional subpoena to exercise that right.

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote in a 93-page opinion.

"In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

Documents released by the Justice Department last year show that Miers was briefed about the decision to purge the U.S. Attorneys and was aware that the Department would cook up a cover story to justify the dismissals.

Jason Leopold has launched a new Web site, The Public Record, at

This article is republished in the Baltimore Chronicle with permission of the author.

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This story was published on August 27, 2008.