Ruling: White House Aides Not Immune From Congressional Subpoenas
A major blow for the White House in the firing of those nine U.S. attorneys.
July 31, 2008— -- A federal court ruled today that top White House aides are not immune from congressional subpoenas, a decision that is likely to reignite the investigation into politicization at the Justice Department.
In a 93-page ruling, U.S. District Judge John Bates wrote there was no legal basis for the Bush administration's claim that executive privilege protects former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten from congressional oversight.
"Presidential autonomy, such as it is, cannot mean that the executive's actions are totally insulated from scrutiny by Congress," Bates wrote. "That would eviscerate Congress's historical oversight function."
For months, the White House has pushed back congressional efforts to force top aides to testify about who made the decision to abruptly fire nine U.S. Attorneys in 2006. But after months of public spats, subpoenas and a court battle, today's ruling ordered that Miers appear before Congress, though she can still refuse to answer questions on a case by case basis.
The ruling also said that Bolten should turn over a more complete log of White House documents related to the investigation.
Congressional Democrats welcomed the decision, calling it a ringing endorsement of the principle that nobody is above the law.
Speaker Nancy Pelosi, D-Calif., 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."
The administration can appeal the decision. White House spokesman Tony Fratto and Justice Department spokesman Peter Carr said they were reviewing the opinion and declined immediate comment.
Democrats 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.
Judiciary Committee Chairman John Conyers, D-Mich., said he hoped that Miers and Bolten do not appeal the ruling, but that was far from clear.
Nonetheless, Conyers signaled election-season hearings will be held on the controversy that scandalized the Justice Department.
If she appears, Miers would likely face questions about whether and how deeply President Bush was involved in the U.S. attorneys' firing scandal, which led to several resignations, including that of former 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."
Bates, who was appointed by President Bush, took particular aim at the executive branch's arguments, noting several times that it could not point to a single law that supported its claim.
"That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law," he wrote.
The decision noted that the Bush administration's arguments hinged heavily on a 1971 memo written by then Assistant Attorney General William Rehnquist (and later chief justice of the Supreme Court), which Rehnquist himself called "tentative and sketchy."
What's more, Bates wrote, because Miers received her subpoena after she left the White House, even that memo offered her no protections.
The House Judiciary Committee subpoenaed Miers and Bolten in June 2007, after the White House declined several requests from Democrats for information. Several weeks later it cited both former aides for contempt, after the two failed to comply with the subpoenas.
In today's ruling, Bates noted that while the White House said in March 2007 that Bush "was not involved in any way" in the firings, it subsequently told the court that the record shows Bush was not involved "in decisions about who would be asked to resign," but "does not reflect that the President had no future involvement" in the matter.
In February 2005, shortly after President Bush's re-election, then-White House counsel Miers wrote to D. Kyle Sampson, then a Bush appointee at the Department of Justice, about whether all 93 U.S. attorneys should be replaced, according to White House documents provided to congressional investigators.
Sampson has since resigned.
Gonzales reportedly rejected the idea as too disruptive, but his White House-appointed adviser, Sampson, spent the next two years coordinating the dismissal of top federal prosecutors viewed as disloyal to the administration.
In a document he forwarded to Miers that was later released to congressional investigators, Sampson ranked all U.S. attorneys by "loyalty to the President and Attorney General." A year later, in an e-mail Sampson wrote Miers suggesting "a limited number of U.S. Attorneys could be targeted for removal and replacement." In that e-mail, he flagged seven candidates for dismissal, including four which were among those eventually fired.