Federal District Judge Rules White House Aides Are Not Immune from Congressional Subpoena

At least one judge—federal District Judge John Bates (a Bush appointee)—-doesn’t think Harriet Miers and Josh Bolten are above the law (AP), or to frame it in DoJ speak, ‘absolutely immune from Congressional subpoenas.’ If the House Judiciary Committee calls, they must respond…in person. (The Gavel) [Remember when Miers didn't appear and they yelled at her empty chair? Good times.] Furthermore, they have to turn over all non-privileged documents. I spot a catch in this last. (The Gavel)

I guess, as conservative blogger Ed Morrissey puts it, you could call this Bush taking [another] one on the chin.

No doubt but that the ruling will be appealed.

Even so, Bates seemed to be pretty clear that there’s no absolute immunity extending to the president and downward to his confidants.

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706). (Emptywheel; more)

Morissey commented on what he calls this ‘game of chicken.’

[T]he ruling comes as both a legal and a public-relations setback for the administration. They had played a game of chicken with Congress on the subpoenas, probably hoping to run out the clock more than anything else. They can still do that with appeals, perhaps all the way to the Supreme Court, which won’t even meet again until October, but the rather emphatic ruling by Judge Bates undermines their case for the effort, at least on a political basis.

The ruling may not make a lot of difference, practically speaking, for the investigation. Bolten and Miers will likely take Bates’ advice if forced to appear and simply refuse to answer any questions. The documents under subpoena will force another fight over which specifically should be covered under executive privilege, and which should not. That will also take months to sort out, and in the end Congress may lose interest in the issue before that takes place.

I wonder why Conservatives are so unconcerned about these claims of immunity? Picture this, Republicans: an Obama administration making the selfsame claim. Morrissey has certainly commented on this issue (unchecked [Democratic] executive) before.

Anyway, as Dan Sweeney said at Huffpost:

Just yesterday, Karl Rove, who has thus far avoided testifying by all manner of clever schemes, from citing the White House’s desire to stand up for the executive branch to being conveniently out of the country, dismissed the Judiciary Committee’s contempt recommendation as “ludicrous.” Today, he continues his inexorable slide toward actually having to show up on Congress’ doorstep.

Law professor Jonathan Turley comments:

For months, many experts (including myself) have been arguing that the Bush Administration’s claim of privilege in the congressional investigations (and the refusal to comply with subpoenas) is untenable, if not laughable….The decision not only puts pressure on Mukasey to stop his obstruction of the process, but it clearly reaffirms the view of many that Karl Rove is also in flagrant contempt.

Meirs and Bolton were previously held in contempt in the Senate…

[I]f these officials are clearly in contempt, then Rove is an even more egregious case. Rove virtually fled the jurisdiction to avoid testifying. The House this week reaffirmed his criminal contempt status… While this decision does not directly cover Rove, the underlying claims rejected by the court are largely the same. The Democrats will likely fire off a new letter to Mukasey. However, if he will not yield to the courts or to Congress, it is time for Congress to use its own inherent contempt power. (More)